Orr v. United States

In the United States Court of Federal Claims

No. 18-1894L

Filed: May 2, 2023

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ELIZABETH ORR, et al., *

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Plaintiffs, *

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v.

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UNITED STATES, *

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Defendant. *

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Brian K. Matise, Burg Simpson Eldredge Hersh & Jardine, P.C., Englewood, CO

for plaintiffs. With him were Nelson Boyle and Emily Lubarsky Quinn, Burg Simpson

Eldredge Hersh & Jardine, P.C., Englewood, CO.

Brian R. Herman, Trial Attorney, Environment and Natural Resources Division,

Natural Resources Section, United States Department of Justice, Washington, DC, for

defendant. With him were Zachary T. West, and Frank J. Singer, Trial Attorneys,

Environment and Natural Resources Division, Natural Resources Section, Jean E.

Williams, Deputy Assistant Attorney General, Environment & Natural Resources

Division, Natural Resources Section; and Todd S. Kim, Assistant Attorney General,

Environment & Natural Resources Division. Bryan Wilson, Attorney-Advisor, Office of

the Field Solicitor, United States Department of the Interior, Billings, MT, of counsel.

OPINION

HORN, J.

Plaintiffs Elizabeth Orr, Howard Carman, and Lena Carman timely filed a complaint

in which they assert “claims for taking of their real and personal property entitling them to

just compensation under the Fifth Amendment to the United States Constitution” against

the United States. During the month of September 2013, all plaintiffs were owners of real

property in Larimer County, Colorado, on the Big Thompson River and within the Big

Thompson River Canyon. Plaintiffs’ properties were located downstream of Olympus

Dam, which is in Estes Park, Colorado and which is operated by the East Colorado Area

Office of the United States Bureau of Reclamation, an agency of the United States

Department of the Interior. Olympus Dam impounds Lake Estes and, as part of the Bureau

of Reclamation’s Colorado-Big Thompson River (C-BT) Project, Olympus Dam releases

water from Lake Estes downstream into the Big Thompson River through five radial gates

located on a spillway.

Between approximately September 9 and September 16, 2013, area around Estes

Park, Colorado experienced heavy rainfall and consequential flooding. Plaintiffs allege

that the Bureau of Reclamation’s operation of Olympus Dam during the September 2013

storm resulted in the plaintiffs losing “substantially all of their homes, the business owned

by the Carmans, and their personal property,” as well as “large sections of the land and

riverfront property owned by Plaintiffs,” which was “displaced or permanently removed

when it was washed away in the floodwaters released by the Bureau of Reclamation.”

Plaintiffs’ complaint alleges that “Defendant, through its agents and employees at

the Bureau of Reclamation, made a conscious decision to release water from the

Olympus Dam in such quantity as to create a probability, if not a certainty, that Plaintiffs’

real property, homes, business, and personal property would be destroyed.” Plaintiffs

further state in their complaint that defendant’s decision to increase releases from

Olympus Dam was “due to its concern for the integrity of the dam and the greater public

good in preserving the dam and preventing the possible loss of lives if the dam broke

versus Plaintiffs’ property.” Moreover, plaintiffs argue that damage to plaintiffs’ property

“would not have occurred but for the Defendant’s actions,” and that the damage was the

“foreseeable result of the Defendant’s actions, including the Defendant’s intentional

discharge of water from the dam.” Plaintiffs claim entitlement to “the fair market value of

their property that was taken, the fair value of the time they were dispossessed from their

property, the actual cost to repair and replace the property that can be repaired and

replaced; the fair lost market value in their properties due to the flooding,” as well as “pre

and post-judgment interest as allowed by law,” plaintiffs’ “reasonable costs, litigation

expenses, and attorney and witness fees,” “all other damages and compensation to which

they [plaintiffs] are legally entitled,” and “such other and further relief as equity and justice

may allow or require.” (alterations added). Plaintiffs’ complaint asserts one cause of

action, “Inverse Condemnation,” in which plaintiffs include the claims of Ms. Orr, Mr.

Carman, and Mrs. Carman. (capitalization and emphasis in original).

In response to plaintiffs’ complaint, defendant filed a motion to dismiss plaintiffs’

complaint pursuant to Rule 12(b)(6) (2018) of the Rules of the Court of Federal Claims.

After briefing, the court denied defendant’s motion to dismiss on the ground that

“discovery is necessary to determine whether plaintiffs’ allegations demonstrate a taking,

and, therefore, plaintiffs should be given the opportunity to develop facts in support of

their claims.” Orr v. United States, 145 Fed. Cl. 140, 158 (2019). Following the denial of

defendant’s motion to dismiss, the parties conducted extensive discovery proceedings.

After the close of discovery, the court held a trial lasting nine days. After reviewing the

exhibits entered into the record and the testimony offered by the witnesses at trial, among

whom were the three plaintiffs, the court makes the following findings of fact.

2

FINDINGS OF FACT

Olympus Dam and Lake Estes, which Olympus Dam impounds,1 are located on

the Big Thompson River in Estes Park, Colorado. The United States Bureau of

Reclamation owns and operates Olympus Dam as part of the Bureau of Reclamation’s

C-BT Project, which the parties stipulated “is a water diversion and storage project that

brings water from the west slope of the continental divide to the east slope, for agricultural,

municipal, industrial, and hydroelectric generation purposes.” The parties further

stipulated that the C-BT Project serves, without limitation, two purposes: “(1) transferring

water from Colorado’s Western Slope to its Eastern Slope for use by the Northern

Colorado Water Conservancy District (‘NCWCD’) [Northern Water]; and (2) the

generation of electricity marketed by the Western Area Power Administration (‘WAPA’).”2

(alteration added).

According to a Senate Report, dated June 15, 1937, titled “Synopsis of Report on

Colorado-Big Thompson Project, Plan of Development and Cost Estimate Prepared by

the Bureau of Reclamation, Department of the Interior,” (capitalization in original), the C-

BT Project has five purposes:

1. To preserve the vest and future rights in irrigation.

2. To preserve the fishing and recreational facilities and the scenic

attractions of Grand Lake, the Colorado River, and the Rocky Mountain

National Park.

3. To preserve the present surface elevations of the water in Grand Lake

and to prevent a variation in these elevations greater than their normal

fluctuation.

4. To so conserve and make use of these waters for irrigation, power,

industrial development, and other purposes, as to create the greatest

benefits.

5. To maintain conditions of river flow for the benefit of domestic and

sanitary uses of this water.

The record before the court includes the Standard Operating Procedures of

Olympus Dam, Estes Powerplant, and Lake Estes, dated April 2005, which were in effect

at the time of the September 2013 storm. The Standard Operating Procedures provide,

under the heading “PURPOSE OF THE PROJECT,” in relevant part: “The primary

purpose of the Project is to provide supplementary water to 720,000 acres of irrigated

1 Witnesses at trial consistently testified that Olympus Dam “impounds” the Lake Estes

reservoir, and the parties also use that term in their briefs.

2 Tim Miller, a hydrologist for the Bureau of Reclamation, described in his testimony that

the WAPA is a hydropower wholesaler which markets to customers the power generated

by the Bureau’s C-BT facilities.

3

land in northeast Colorado. The secondary purpose is to utilize the power potential of the

water as it drops 2,800 feet between the Alva B. Adams Tunnel and the foothills storage

system.” (capitalization and emphasis in original).

Upstream of Olympus Dam in the C-BT Project is the Adams Tunnel, which the

parties stipulated “brings water from the C-BT’s west slope facilities” through the

mountains of the continental divide “to the east slope, depositing water in the East Portal

Reservoir.” The maximum flow of Adams Tunnel is 550 cubic feet per second (cfs).3

According to the testimony of Carlos Lora, a hydrologic engineer and water scheduler in

the Water Resources Group of the East Colorado Area Office of the Bureau of

Reclamation, United States Department of the Interior, the flow of Adams Tunnel is

measured at the East Portal Reservoir. According to the testimony of James VanShaar,

who was the head of the Water Resources Group in the East Colorado Area Office of the

Bureau of Reclamation, United States Department of the Interior, during the September

2013 storm, once the water from Adams Tunnel is deposited in the East Portal Reservoir,

“[a]lmost all of it goes into the Marys Lake Powerplant,” which has a capacity of

approximately eight megawatts. (alteration added). From Marys Lake Powerplant, water

passes into Marys Lake and through the Estes Powerplant. Estes Powerplant has a

capacity of 45 megawatts, divided between three 15-megawatt units. The water leaving

Estes Powerplant then flows into Lake Estes alongside the Big Thompson River.

Olympus Dam impounds Lake Estes. The parties stipulated that water comes into

the Lake Estes reservoir through “the Estes Power Plant, the Big Thompson River above

Lake Estes, Fish Creek, other smaller creeks and natural inflows, and rainfall over the

reservoir.” The parties further stipulated that water leaves the Lake Estes reservoir “(1)

through one or more of the five spillway gates into the Big Thompson River; (2) through

a small slide gate into the Big Thompson River; and (3) through the Olympus Tunnel.”

Water that leaves Lake Estes through the spillway gates or the slide gate of Olympus

Dam enters the Big Thompson River, in the Big Thompson River Canyon, “below” or

downstream from Olympus Dam. Water that leaves Lake Estes through the Olympus

Tunnel enters another portion of the C-BT Project but, as the parties stipulated, may “re-

enter the Big Thompson River near the mouth of the Big Thompson River Canyon,”

downstream of plaintiffs’ properties. According to the parties’ stipulations, “[i]n most

normal operating circumstances, and absent appropriate state authorization, natural

runoff into the C-BT is not project water” belonging to the Bureau of Reclamation, and,

therefore, “the majority of water in Lake Estes is C-BT water.” (alteration added).

According to the parties’ joint stipulations, water that passes through Olympus

Dam flows into the Big Thompson River, and joins a tributary downstream, the North Fork

Big Thompson River at the confluence at Drake, Colorado, within the Big Thompson River

Canyon. According to the testimony of James VanShaar and a diagram of the C-BT

Project admitted as a joint exhibit at trial, when the Big Thompson River reaches the

mouth of the Big Thompson River Canyon, a portion of the water passes through the City

of Loveland Powerplant, also identified as the Idylwilde Powerplant, before rejoining the

3 Two abbreviations of “cubic feet per second” appear throughout this Opinion, “cfs” and

“ft3/s.” The abbreviations “ft3/s” or “ft3” (cubic feet) appear only in quotations.

4

Big Thompson River immediately thereafter. Downstream of the Idylwilde Powerplant, a

portion of the water in the Big Thompson River is diverted through the Big Thompson

Tunnel and the Dille Diversion Dam to flow through the Big Thompson Powerplant, while

the majority of the water continues to flow in the Big Thompson River. Mr. VanShaar

testified that the Big Thompson River is typically “a very small river, barely more than

what they would call a creek in other parts of the country,” with an average flow of between

50 and 75 cfs, and shallow enough that, in most places, “you could walk across it.”

According to the testimony of Anthony Curtis, chief of the Resource Division at the

East Colorado Area Office of the Bureau of Reclamation, United States Department of

the Interior, the majority of the water in facilities in the Eastern Slope portion of the C-BT

comes from the Western Slope via the Adams Tunnel, and rights to most of that water

are held by Northern Water. In the Eastern Slope facilities of the C-BT Project, water

travels downstream in the direction of what Mr. Curtis described as the “terminus

reservoirs” of Carter Lake and Horsetooth Reservoir, from which reservoirs it is delivered

to the constituents of the project.

Water that leaves Lake Estes through the Olympus Tunnel typically travels through

the Bureau of Reclamation’s Pole Hill Powerplant. The Pole Hill Powerplant has a

capacity of 35 megawatts. In the event that the Pole Hill Powerplant is taken offline, the

Bureau can redivert water though a Rediversion Structure in Little Hells Canyon,

Colorado. According to the testimony of Mr. VanShaar, water that is rediverted through

Little Hells Canyon enters the North Fork of the Little Thompson River and then the

Rattlesnake Canal and Tunnel. Mr. VanShaar also testified that “some small amount less

than 550 cfs can be rediverted at the rediversion structure.” According to the testimony of

Ralph Beall, facility manager of the C-BT Project at the Bureau of Reclamation, United

States Department of the Interior, the Rediversion Structure is “made out of timbers,

perhaps six-inch by six-inch, and they [the water] go through some gates that go into the

afterbay of Pole Hill.” (alteration added). Water which is not rediverted away from the Pole

Hill Powerplant travels through the Pole Hill Powerplant and into the Pole Hill afterbay,

which, according to the testimony of Mr. Beall, “has a very small levee, to push that water

through the siphon into Pinewood Reservoir.” Mr. VanShaar indicated that whether the

water passes through the Pole Hill Powerplant or is rediverted through Little Hells

Canyon, however, the water ultimately flows into the Pinewood Reservoir and the Flatiron

Powerplant. The Flatiron Powerplant has three generators, two with 45-megawatt

capacities, and one with a ten-megawatt capacity. Some of the water which passes

through the Flatiron Powerplant is diverted to Carter Lake, one of the C-BT’s two terminal

reservoirs, while the remainder of the water continues flowing into the Charles Hansen

Feeder Canal. The Charles Hansen Feeder Canal carries water to the Big Thompson

Powerplant at the mouth of the Big Thompson River Canyon or to the Horsetooth

Reservoir, according to the testimony of Mr. Beall and Mr. VanShaar.

According to Mr. VanShaar, most of the water in the C-BT Project ultimately

passes through a three-flow system known as the Trifurcation at the mouth of the Big

Thompson River Canyon. The water which re-enters the Big Thompson River continues

flowing south as far as Boulder, Colorado. The Trifurcation was described by Mr. Beall as

“different ways that we [the Bureau] can move water through Big Thompson Powerplant”

5

after passing through the rest of the upstream C-BT system. (alteration added). First, Mr.

Beall testified, water which is not sent through the Olympus Tunnel, but stays in the Big

Thompson River is skimmed4 “at a diversion called Dille Tunnel, which is at the Narrows

a couple miles upstream of the power plant,” and from there the water flows into the 930

Section of the Charles Hansen Feeder Canal and on to the Big Thompson Powerplant.

Second, according to Mr. Beall, water may pass through the Olympus Tunnel and the

Pole Hill Powerplant, Pinewood Reservoir and Flatiron Powerplant, Carter Lake and then

into the 930 Section of the Charles Hansen Feeder Canal, which leads to the Big

Thompson Powerplant. Third, water in the 930 Section, rather than flowing into the Big

Thompson Powerplant, can instead flow north into another section of the Charles Hansen

Feeder Canal, the 550 Section, and from there flow into Horsetooth Reservoir, according

to Mr. Beall’s testimony.

The parties stipulated that Olympus Dam is composed of “an earthen embankment

portion [of the dam], with crest elevation 7,481 feet above sea level, and a concrete gravity

dam featuring a spillway.” (alteration added). Through five release gates in the concrete

gravity dam, also referred to interchangeably as “radial gates” and “spillway gates,” the

Bureau of Reclamation can release water from Lake Estes into the Big Thompson River.

Mr. VanShaar testified that the spillway release gates raise vertically to release water

onto the spillway. The parties stipulated that when closed, “[t]he top of the spillway gates

is elevation 7,475 feet above sea level.” (alteration added). At trial, Adam Northrup, an

engineering technician with the Bureau of Reclamation, United States Department of the

Interior, testified regarding the operation of the spillway gates, “there’s a cable that’s

connected to the bottom of the radial gates,” which is connected to mechanisms, called

trunnions, on the outside, or downstream side, of the gates, “and the trunnions are the

hinge, and the cable pulls up from the bottom of the gate and there’s a motor on the cable

to reel it in,” and by reeling the cable in, the mechanism opens the gate.

The parties stipulated that the spillway of Olympus Dam has a “design capacity” of

21,200 cfs. Of the five spillway release gates, the Bureau of Reclamation office at Casper

Control Center in Wyoming can operate one gate remotely, “up to a maximum release of

approximately 900cfs.” According to the testimony of Mr. Beall, Gate 3, the middle gate,

is the release gate which is typically operated remotely. According to the parties’ joint

stipulations and the Post Incident Analysis Report on the September 2013 flood prepared

by the Bureau of Reclamation (the Post Incident Analysis Report),5 a dam operator must

be present at the dam in order to open the remotely operated gate further than a release

of 900 cfs, or to open any of the four gates which are not remotely operated.

Olympus Dam is classified by the Bureau of Reclamation as a “high hazard dam,”

which the parties stipulated that the Bureau of Reclamation defines “as one in which more

than six lives would be in jeopardy and excessive economic loss would occur as a direct

4 At trial, Mr. Miller testified that “skimming” water means to borrow water from the river

for use in generating hydropower and returning the water to the river within 24 hours.

5The Post Incident Analysis Report on the September 2013 flood was jointly submitted

by the parties as an exhibit and is dated October 2014.

6

result of dam failure.” According to the testimony of Mr. Northrup, in the event that the

water in Lake Estes overtopped Olympus Dam, water would overtop the spillway gates

first, which are lower than the earthen portion. According to the testimony of Mr. Beall,

Olympus Dam is “an important link in the [C-BT] system.” (alteration added). Olympus

Dam’s importance is due in large part to the fact that, absent Olympus Dam, the Bureau

of Reclamation could not divert water through the Olympus Tunnel towards the Pole Hill

and Flatiron powerplants. Mr. Beall explained that Olympus Dam is also necessary to the

functioning of the facilities down the Olympus Tunnel because Olympus Dam, by

impounding Lake Estes, creates the “head,” or difference in water elevation, necessary

to drive water through the Olympus Tunnel and into the Pole Hill Powerplant and other

downstream powerplants on that branch of the C-BT Project.

The Standard Operating Procedures for Olympus Dam describe the dam as

follows:

The dam is a 1,951-foot-long composite structure, consisting of a zoned

earth embankment with slopes of 3:1 H:V[6] upstream and 2:1 H:V

downstream, and a concrete gravity dam containing a spillway overflow

section. The upstream face of the earth embankment is protected by a layer

of riprap and the downstream face is protected by a layer of rock and cobble

fill.

(footnote added). Further, according to the Standard Operating Procedures:

The maximum structural height of the concrete gravity dam is 70 feet, at the

contact with the earth embankment. The structural height of the

embankment section is 70 feet with a crest width of 30 feet. The concrete

portion of the dam has a crest width of 10.5 feet including the overhang of

the parapet and curb, and a maximum base width of approximately 60 feet,

not including the spillway apron. Construction of Olympus Dam was

completed in 1949.

The parties stipulated that “Olympus Dam is not a flood control dam,” meaning that the

Lake Estes reservoir has a relatively small capacity: in the “operational range” of the

reservoir, between 7,469.57 feet elevation and 7,474 feet elevation, “Lake Estes can store

740 acre-feet of water,” and the entire capacity of Lake Estes up to 7,474 feet elevation

6Neither the Standard Operating Procedures nor the witnesses at trial defined “H:V” as

used in the Standard Operating Procedures.

7 While 7,469.5 feet in elevation is referred to as the bottom of the operational pool,

according to the Standard Operating Procedures, “[n]ormally, the reservoir is maintained

between elevations 7471 and 7475 for recreation,” which according to the testimony of

Mr. VanShaar refers to the water level necessary for activities like boating and fishing.

(alteration added).

7

is 3,069 acre-feet.8 With respect to the storage capacity of the reservoir, the Standard

Operating Procedures for Olympus Dam refer to the elevation range between 7,450.25

feet and 7,475 feet as “Active Conservation Storage,” while the elevation range between

7,474 feet and 7,475 feet is labeled “Regulatory Reserve,” which the Standard Operating

Procedures explain as “a sub pool within the active conservation storage containing water

immediately below the spillway but above the normal water surface used for power

generation, which should be used only in emergency situations.” Paula O’Brien, who at

the time of the September 2013 flood was known as Paula Baty and who worked as a

dam safety engineer at the East Colorado Area Office of the Bureau of Reclamation,

United States Department of the Interior, testified that “there are a number of implications”

to the fact that Olympus Dam is not a flood control dam, “the most important” of those

implications being that “neither its outlets nor its size is designed to manage flood flows.”

The Standard Operating Procedures for Olympus Dam require the keeping of an

Operating Log, and state, under the heading “CERTIFICATION OF STANDING

OPERATING PROCEDURES REVIEW BY OPERATING PERSONNEL:” “All operating

personnel will certify the above and sign the Operating Log.” (capitalization and emphasis

in original). The Standard Operating Procedures further state, under the heading “G.

OPERATING LOG:”

The purpose of the Operating Log is to have a chronological record of all

important events to provide a continuing record of operating activities, and

to provide clues to the possible cause of equipment trouble or the

development of unusual conditions occurring at the dam.

The Operating Log shall be kept in the control house in a bound book. A

sample of an Operating Log (Form 7-1623) is shown in appendix B-2. All

entries shall be in ink or other indelible material. Corrections in the logbook

shall be made by crossing out the incorrect notation so that it is still legible,

and adding the correct entry. Do not erase or eradicate entries in the

logbook.

A logged record shall be maintained by the operating personnel or

designated alternate on duty. Portions of the information will be available

from automatic recordings and monitoring equipment. Specific data may

vary in form and content to fit the needs and conditions present at the dam.

In general, the data shall include information such as:

• Normal and emergency changes in operation of outlet works and/or

spillways including individual gate changes and positions.

• Water elevations and discharges.

• Startup and stopping of mechanical equipment.

• Testing of standby equipment or gate controls.

8The elevation of 7,474 feet also was referred to by Mr. Lora as the top of the “operational

pool” and by Mr. VanShaar as the top of the “regulatory pool.”

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• Minor and major maintenance activities including scheduled

maintenance.

• Reservoir surveillance.

• Initial acknowledgement of unusual or emergency conditions.

• Requests and concurrence to change from normal operation during

unusual or emergency conditions.

• Exercising of all gates and valves.

• Communications network checks.

• Record of names and address of official visitors and all Reclamation

review teams.

• Reports on acts of vandalism.

• Certification of SOP [Standard Operating Procedures] review by

Dam Operator and supervisor.

• Record of Comprehensive/Periodic Facility Review and annual

examinations.

• Certification and type of Dam Operator’s training.

• Miscellaneous items pertinent to operation and emergency or

unusual incidents at the structures.

• Record of performance of “Ongoing Visual Inspections.”

Some other approved record forms are included in Appendix B. These

records are also considered part of the dam operator’s Operating Log, and

shall be accessible at all times.

The Operating Log is kept in the control house at Olympus Dam.

(capitalization and emphasis in original; alteration added). According to the testimony of

Mr. VanShaar, the Operating Log for Olympus Dam was kept at Casper Control Center

in Wyoming by Bureau personnel, and contained entries not only for Olympus Dam, but

also for Lake Estes and other relevant C-BT Project facilities.

Moreover, the Bureau of Reclamation’s Standard Operating Procedures, as

included in the record before the court, provide for an Emergency Action Plan, which is

dated May 2003 in the version included in the record before the court. The parties

stipulated that, pursuant to the Standard Operating Procedures and the Emergency

Action Plan, the Eastern Colorado Area Office designates an Incident Management

Team9 in emergency situations. According to the parties’ stipulations, the “IMT [Incident

Management Team] includes employees from various components of the ECAO [East

Colorado Area Office]” and “is responsible for managing the ECAO’s response to the

event.” (alterations added). According to the parties’ joint stipulations, “in the beginning

9 In his testimony at trial, water scheduler Mr. Miller referred to an “Incident Command

Team,” which was tasked primarily with communication with the media, whereas the

Incident Management Team was concerned with coordinating “the different emergency

responders for the different cities and the sheriff’s offices and things like that,” as well as

declare Response Levels.

9

of the September 2013 storm,” the East Colorado Area Office formed an Incident

Management Team, and Ralph Beall was designated the “Incident Commander” of the

Incident Management Team. The Post Incident Analysis Report prepared by the Bureau

of Reclamation explains:

The Colorado Big Thompson Facility Manager, Ralph Beal [sic], was the

Incident Commander as delegated by the ECAO [East Colorado Area

Office] Area Manager, Michael Collins (Agency Administrator). An Incident

Management Team (IMT) concept was used which helped facilitate better

span of control, chain of command, resource management, facilitate

awareness of project operations and maintain situational awareness. ECAO

had adopted Incident Command Systems (ICS) for incident management

across its projects and has conducted ICS training and incorporated these

concepts into their EAPs [Emergency Action Plans].

The ECAO Incident Commander has the authority to declare an emergency

at Olympus Dam and activate the IMT. The ECAO ICS organizational

structure for this event is shown in the figure below.

(alterations added).

The Post Incident Analysis Report indicates that, alongside Mr. Beall, the Incident

Management Team consisted of the Liaison Officer, Jacklynn Gould, the Safety Officer,

David Hartman, the Security Officer, Howard Bailey, the Agency Representatives to the

City of Loveland Emergency Operations Center, James VanShaar and Andrew Gillmore,

and the Public Information Officer, Kara Lamb, although the Post Incident Analysis Report

does not specify at what times the members joined the Incident Management Team.

Paula O’Brien, who, as noted above, was at the time serving as safety engineer in the

East Colorado Area Office, testified at trial that she also joined the Incident Management

Team sometime the morning of September 12, 2013. The Post Incident Analysis Report

indicates that the Incident Management Team reported to the Agency Administrators for

the East Colorado Area Office, identified as the Manager, Michael Collins, and the Deputy

Manager, Jacklynn Gould, who, as noted above, also served as the Liaison Officer. At

trial, Mr. Beall testified that, despite holding the title “Incident Commander,” he was not

the “lead decision-maker,” and Mr. Beall identified three individuals who outranked him:

Michael Collins and Jacklynn Gould, who Mr. Beall identified as “my boss’ boss and boss,”

and Charles Pedersen, who Mr. Beall identified as “my direct boss” and who the Post

Incident Analysis Report identifies as head of the Operations Section. 10 Mr. Beall further

testified that, when holding the tile of Incident Commander, he remained “the facility

manager at the same time.” Mr. Beall described the decision-making process for the

Incident Management Team:

So the incident command team would meet. Water scheduling is watching

and monitoring the precipitation event. They come in with data. We

10At trial, Mr. Northrup identified Mr. Pedersen as the “chief of Operating and

Maintenance Division” at the time of the September 2013 flood.

10

collectively meet as a group, whether it’s by phone or in person. We assess

the situation and what is occurring right at that moment.

Then we look at the Emergency Action Plan to see if we need to go to an

alert level, and then we pass on that information. And in my case, I’d be

passing on information to my subordinates on infrastructure planning,

making sure we’re ready for whatever the situation might be, and then

there’s a contact string where, for instance, the Great Plains duty officer

needs to be contacted, public information officer may need to outreach to

people. So that’s kind of how the meeting would go.

And then we would agree on an alert level and what possible changes could

make us have to meet again, and agree on responsibilities throughout the

organization.

Mr. Beall further explained:

Then my plan was to pass that information on to my foreman and then

ultimately on to the staff to be ready to act as needed, and then there is a

list of contacts that need to be made as you go through your alert levels,

starting with internal alert, Level 1, Level 2, Level 3, et cetera.

Our security officer, Howard Bailey, and emergency management man, at

the very first meeting, he volunteered to make those notifications throughout

our process and then confirmed with me after he had done that.

Mr. Beall also testified that “[a]lways when you have a situation, you start with your

Emergency Action Plan,” which Mr. Beall indicated was Bureau of Reclamation policy.

(alteration added). While the Post Incident Analysis Report stated that the “Incident

Commander, has the authority to declare an emergency at Olympus Dam and activate

the IMT,” (alteration added), Mr. Beall testified that he did not “recall independently having

the authority to declare an emergency at Olympus Dam,” but rather stated that “we [the

Incident Management Team] start by meeting, using our collective knowledge and

experience, and going through our documents and agreeing on what actions we’re going

to take.” (alteration added). According to the Post Incident Analysis Report prepared by

the Bureau, which was corroborated by the testimony of Mr. Beall and Mr. Miller, Mr.

Bailey was responsible for public notifications from the Incident Management Team, as

follows:

Official notification of dam Response Levels and project operations

including operational releases from Olympus dam were made by the ECAO

Emergency Management Coordinator (Howard Bailey). Public information

was coordinated directly with the public and the media by the ECAO Public

Information Officer (PIO) (Kara Lamb). The official notification process was

followed in accordance with the EAP [Emergency Action Plan] and

Reclamation policy. The ECAO made Response Level notifications to the

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Great Plains Region Duty Officer (GPRDO) in a timely fashion and provided

sound information on incident details.

(alteration added).

According to Mr. Beall’s testimony, “the Incident Management Team met on a

regular basis during the [September 2013] storm event.” (alteration added). According to

the testimony of Mr. Miller, the Incident Management Team functioned mainly to pass on

information and that the water schedulers, whose function was to make decisions

regarding releasing water into the river. Ms. O’Brien testified that, in her role in the Incident

Management Team, she “would relay information and requests about monitoring and

what we needed to do and critical information about the engineering or structure of the

facility” to Mr. Beall, and “let him know what resources we would need and when -- when

we might need to do different things” with the operation of Olympus Dam.

The Emergency Action Plan for Olympus Dam, as included in the record before

the court and in effect during the September 2013 storm, provides for five levels of

emergency response, which range from “Internal Alert,” the least severe response level,

to Response Level 4, the most severe response level, indicating failure of Olympus Dam.

In relevant part, the Internal Alert response level is defined by the Emergency Action Plan:

1. The Internal Alert Response Level is the least serious of the Response

Levels. Declaration of the Internal Alert Response Level means that an

“Internal Alert” will be conducted in which emergency response activities

including internal notifications for affected organizations will be carried out.

2. This means that these organizations will observe and analyze the event,

and that they will “stand-by” because nothing “serious” is happening yet. But

indications are that something definitely IS happening that could develop

into a potentially significant threatening event only if it intensifies.

(capitalization and emphasis in original). Response Level 1 is defined in relevant part:

1. Declaration of Response Level 1 means that involved organizations need

to “Standby” for additional information relative to developing conditions.

Nothing significant really needs to be done for Response Level 1 except to

stay aware of the event after it is detected, and observe and analyze it for

possible action. Nothing significant has developed yet, but indications are

that something definitely IS happening that could progress into a potentially

significant threatening event if it continues or intensifies.

2. Local emergency management officials of jurisdictions downstream will

receive, and be encouraged to conduct, a “communications check” during

Response Level 1 to allow their response organizations to go into alert

status. Response agencies generally do not mobilize resources for

declaration of Response Level 1.

12

3. Response Level 1 does NOT represent an emergency YET, but may be

perceived as such by the media or general public. Nor does Response Level

1 pose a hazard, either at the dam or to downstream populations at risk, at

the time of observation.

(capitalization and emphasis in original). The definition of Response Level 1 also

provides: “Any developing events that belong in Response Level 1 will be identified as

being of a level of intensity where they can be managed and brought under control by the

dam operating personnel with NO NEGATIVE IMPACTS DOWNSTREAM.”

(capitalization in original).

Response Leve 2 is defined in relevant part:

1. Declaration of Response Level 2 means that conditions are now more

serious than those in Response Level 1 but not yet serious enough to

declare Response Level 3.

2. For this Response Level, the dam will not have failed, nor is failure

imminent. However, the condition of the structure will currently be unstable,

or operational releases will be such that they may become life-threatening.

This means that the dam may yet be stabilized, or that operational releases

may not actually impact populations at risk if conditions diminish in intensity

or are brought under control, but circumstances are such that populations

at risk MUST BE placed on “stand-by” status which means notifications to

populations at risk should include directions to BEGIN PREPARATIONS to

leave predetermined inundation areas for higher ground and safe shelter. It

also means that conditions COULD worsen that WOULD require an

evacuation if not brought under control effectively.

3. Upon notification of declaration of Response Level 2, local emergency

management officials and response agencies will be encouraged to

mobilize resources and position them at staging areas. For flood operations,

initiate road access closures and begin staging evacuation of low areas as

flood releases are staged up.

(capitalization in original). The definition of Response Level 2 further provides:

“Notification to designated downstream 24-hour warning points is a REQUIRED ACTION

THAT WILL BE TAKEN whenever Response Level 2 is declared.” (capitalization in

original).

Response Level 3 is defined in relevant part:

1. Declaration of Response Level 3 means involved organizations must

“GO” (initiate evacuation). Declaration and implementation of Response

Level 3 means the situation is extremely serious. For this Response Level,

major life-threatening operational releases will be made, major structural

damage to the dam will occur, or the physical condition of the dam will have

13

deteriorated such that stabilization is not possible and the dam will most

likely fail.

2. For this Response Level, one, or more, of the following emergency

conditions will be present:

a. OPERATIONAL RELEASES HAVE BECOME LIFE-THREATENING.

b. THE DAM IS IN DANGER OF IMPENDING FAILURE.

3. Declaration of this Response Level means populations at risk are in

IMMINENT DANGER and that evacuation of populations at risk in all or a

portion of the dam failure flood inundation area is REQUIRED!

(capitalization in original). The definition of Response Level 3 further provides:

5. Response Level 3 will be declared and initiated for all situations

ANYTIME that it becomes obvious, through analysis of threatening events,

that IMMEDIATE EVACUATION of populations at risk located downstream

from the affected dam is necessary! Again, notification to the downstream

24-hour Warning Point(s) is a REQUIRED ACTION THAT WILL BE TAKEN

whenever Response Level 3 is declared.

6. Declaration of Response Level 3 will be based on the certainty that LIFE-

THREATENING floodwaters will affect populations at risk.

7. In cases where Response Level 3 is declared without passing through an

Internal Alert or Response Levels 1 and/or 2 first, carrying out expected

actions for Response Level 3 is the first priority. Expected actions for the

Internal Alert or Response Levels 1 and 2 will be checked and completed

only after having completed them for Response Level 3 first.

8. A protective action recommendation will be made that local authorities

issue an [sic] public evacuation warning to immediately leave flood

inundation areas for safe areas.

9. Local authorities are responsible for advising the public on safe

evacuation routes and where to go for safe shelter. Response organizations

will be encouraged to fully mobilize and physically implement evacuation

procedures for Response Level 3.

(capitalization in original).

Response Level 4 is defined in relevant part:

1. Declaration of Response Level 4 means the dam is “GONE” (it has

failed). This is the most dangerous Response Level.

14

2. For this Response Level, the following emergency conditions will be

present:

a. THE DAM IS FAILING/THE DAM HAS FAILED.

b. RESULTANT RELEASES ARE EXTREMELY LIFE-THREATENING.

3. Declaration of this Response Level means populations at risk and

response personnel conducting evacuations in inundation areas are in

IMMINENT DANGER and that they should leave the dam failure flood

inundation area IMMEDIATELY!

(capitalization and emphasis in original).

The Emergency Action Plan provides a set of “Initiating Conditions” for each of the

emergency response levels. Under the heading “Decision-Making,” the Emergency

Action Plan provides, in relevant part:

The decision will be made by the Area Office to declare a specific response

level based on an analysis of identified initiating conditions for Olympus

Dam. For hydrologic events, the decision will be made by the Area Office

based on the April 1996 Olympus Dam Early Warning System Decision

Criteria Document. The dam operator will only declare a Response Level in

the event communications between the dam and the Area Office is

interrupted or the initiating conditions require going immediately to a Level

3 Response.

The Emergency Action Plan categorizes initiating conditions for all response levels except

for Response Level 4 as either “HYDROLOGIC EVENTS,” “EARTHQUAKE,” or “ALL

OTHER EVENTS.” (capitalization in original).

The Emergency Action Plan provides the following initiating condition for an

Internal Alert response level with respect to hydrologic conditions: “It becomes evident,

based on rainfall and streamflow data being received from the EWS [Early Warning

System] basin-monitoring equipment, that releases of 1,000 ft 3/s will need to be made

from the dam.” (alteration added). The Emergency Action Plan provides the following two

initiating conditions for Response Level 1 with respect to hydrologic conditions:

a. A Flash Flood Watch, Flood Watch, or Severe Storm Watch is issued

by the National Weather Service for the Estes Park area or the Olympus

Dam Drainage Basin.

b. It becomes evident, based on rainfall and streamflow data being received

from the EWS basin-monitoring equipment, that releases of 1,100 ft3/s will

need to be made from the dam. An existing agreement requires

Reclamation to contact the City of Loveland when a release of 1,100 ft 3/s

will be made.

15

(capitalization and emphasis in original).

The Emergency Action Plan provides the following four initiating conditions for

Response Level 2 with respect to hydrologic events:

a. A Flash Flood Warning, Flood Warning, or Severe Storm Warning is

issued by the National Weather Service for the Estes Park area or the

Olympus Dam Drainage Basin.

b. It becomes evident, based on rainfall and streamflow data being received

from the EWS basin-monitoring equipment, that releases of 1,500 ft 3/s will

need to be made from the dam. It is at a flow of 1,500 ft 3/s in the Big

Thompson River that water level first reaches the level of homes and

businesses below Olympus Dam.

c. Rainfall totals greater than 1.2 inches in 1 hour or 1.7 inches in 3 hours

at half of the operating rain gauges. Refer to the April 1996 Olympus Dam

EWS Decision Criteria Document.

d. It becomes evident, based on rainfall and streamflow data being received

from the EWS basin-monitoring equipment, that inflows to Lake Estes will

reach 5,000 ft3/s. It is estimated that the Olympus Dam spillway will being

plugging at inflow of about 5,000 ft3/s.

(capitalization and emphasis in original).

The Emergency Action Plan provides the following two initiating conditions for

Response Level 3 with respect to hydrologic events:

a. It becomes evident, based on rainfall and streamflow data being received

from the EWS basin-monitoring equipment, that releases of 1,500 ft 3/s will

need to be made from the dam. As mentioned earlier, it is at a flow of 1,500

ft3/s in the Big Thompson River that water level first reaches the level of

homes and businesses below Olympus Dam. Also, most structures in the

Big Thompson Canyon Below Olympus Dam are inundated at a flow of

6,000 ft3/s. Once Response Level 3 has been declared, continual contact

will need to be established between Reclamation and downstream

authorities so that evacuation of downstream populations can be

coordinated with anticipated releases from the Dam.

b. Rainfall totals greater than 1.5 inches in 1 hour or 2.2 inches in 3 hours

at half of the operating rain gauges. Refer to the April 1996 Olympus Dam

EWS Decision.

(capitalization and emphasis in original). The Emergency Action Plan provides only one

initiating condition for Response Level 4, without categorization: “Olympus Dam begins

to fail, or has failed, from any cause.”

16

The Emergency Action Plan further provides tables of “EXPECTED ACTIONS” for

each of the Response Levels. (capitalization and emphasis in original). The Emergency

Action Plan states, under the heading “EXPECTED ACTIONS TABLES:”

1. Expected Actions of organizations have been arranged according to the

severity and time of occurrence of the developing emergency event and

then placed under the appropriate Response Levels. This means that

the Expected Actions for each organization will be the response actions

that organization will implement when that Response Level is declared.

This operating methodology has been designed to help prevent

organizations from over or under reacting to the observed and identified

emergency event that is occurring.

2. The Expected Actions for each organization under each Response Level

listed are presented in columnar format with three columns.

3. Column 1 presents the tasks or responsibilities an agency or individual

will need to implement in response to declaration of the Response Level.

In all cases, the responsible person (by title) who is responsible to

ensure that the listed task and/or responsibility is carried out for each

office is as follows:

a. DAM OPERATIONS PERSONNEL: The Dam Operator and/or the

Facility Supervisor, for the Estes/Marys Lake Powerplant.

b. LOVELAND CONTROL CENTER (LCC): The LCC Operator and/or

Foreman.

c. EASTERN COLORADO AREA OFFICE (ECAO): Water

Scheduling/Safety of Dams Staff or Division Chief and/or the Area

Manager.

d. GREAT PLAINS REGIONAL OFFICE (GPRO): Facility Operation

Services Group Staff or Group Leader and/or the Infrastructure and

Engineering Services Group Manager.

4. Column 2 provides space for personnel to date/time stamp when the

listed task/responsibility was completed. This, in effect, becomes the

documentation for final reports that must be submitted upon cessation

of emergency operations.

5. Column 3 lists “Location of the Implementing Procedure”. [sic] This

procedure may be located somewhere in the Emergency Action Plan,

Standard Operating Procedures, or in some other procedural document

for the organization.

6. The four Response levels shown are sequenced in ascending order of

severity for each individual and/or organization.

7. Note: Although Reclamation can coordinate with downstream officials

regarding the affect [sic] that Olympus Dam releases may have on

downstream flooding caused by inflows below the dam, this EAP and

the Olympus Dam EWS are for storm events occurring above the dam

and cannot be relied upon by local officials for storm events occurring

below the dam.

17

(capitalization and emphasis in original; alterations added). At trial, Tim Miller testified that

“as the water scheduler that day,” meaning September 12, 2013, he “would have followed

this portion of the Emergency Action Plan as applicable.”

The Emergency Action Plan further provides for a series of “HAZARD SPECIFIC

GUIDELINES.” (emphasis and capitalization in original). The “Hazard Specific Guidelines

state at the outset:

A. INTRODUCTION

1. All information contained in the following hazard specific guidelines

is directed toward actions the dam operating personnel may need to

take and data they will need to gather to help facilitate decision-

making directed toward ensuring the structural integrity of Olympus

Dam and appurtenances for specific incidents that could have an

impact on the dam.

2. In all cases, regardless of the incident, the following shall apply:

a. The first action taken by the dam operating personnel, or anyone

receiving incoming data from the EWS shall be to implement the

actions and notification procedures as specified in the Response

Levels System for Olympus Dam; and,

b. The dam operating personnel will then implement procedures to

gather additional data and to preserve the structural integrity of

Olympus Dam and appurtenant structures as specified in this

Emergency Action Plan for specific events.

3. Information presented in the following guidelines is addressed

primarily at making visual observations, taking instrumentation

readings, and providing that data to decision-makers in the Eastern

Colorado Area Office, and Great Plains Regional Office.

B. REPORT OF EMERGENCY SITUATION OR UNUSUAL

OCCURRENCE

1. A record of all telephone or radio reports of emergency situations or

unusual occurrences shall be maintained at all steps of the

communications network. The form on the following page shall be

used in documenting the report. A supply of these forms should be

kept on hand and filled out in event of an emergency report or the

event should be recorded in the logbook. Each call should be

recorded in a chronological order as necessary to maintain

continuing records during an incident.

2. This report shall be considered part of the Operating Log and should

be accessible at all times.

(capitalization and emphasis in original). The “Hazard Specific Guidelines” within the

Emergency Action Plan further provide, under the heading “C. FLOOD OPERATIONS

OR LARGE RELEASES INTO THE DOWNSTREAM CHANNEL:”

18

1. Hazard Identification: There is no flood control space allocation in Lake

Estes. The hydrologic loading condition, identified as being the most

critical inflow scenario for warning purposes, is the Probable Maximum

Flood whose peak discharge is 83,900 ft3/s and whose volume is 79,900

acre-feet. It has been estimated that failure of the dam from a flood of

this size would result in a peak discharge of 108,000 ft3/s in the Big

Thompson River with an average depth of 20 feet.

2. Operating Personnel:

a. Flood operating Criteria

(1) The dam will be attended 24 hours per day when major inflows

occur which may endanger the safety of the dam and/or

downstream residents.

(2) The status of operations in the drainage area above Estes

Power Plant should be established during an emergency. If

necessary and conditions permit, dispatch an employee to

search for a route from the flood area in order to advise higher

authority of the situation and to re-establish communications.

(3) When a heavy rainstorm develops in the Rocky Mountain

National Park, within the Big Thompson River Drainage Basin,

the Chief Ranger of the park will notify the Estes Power Plant

Foreman. The Estes Power Plant Foreman will notify the

Loveland Control Center (LCC),[11] who will relay this

information to the Water Scheduling Division, Water and Land

Operations Division, and Power Division of the Eastern

Colorado Area Office (ECAO). ECAO will notify the Estes Park

Police Department and Larimer County 24-Hour Warning

Point that flooding may occur above and below Lake Estes.

(4) IF OLYMPUS DAM APPEARS TO BE ENDANGERED

(SUCH AS A SUDDEN SEVERAL FOOT RISE IN LAKE

LEVEL AND THREATENS TO OVERTOP THE

EMBANKMENT, immediately contact the ECAO. Information

to be reported should include current reservoir water surface

elevation, observed water surface rise rate, weather

conditions in the vicinity(past, present and predicted), and

discharge condition of the Big Thompson River above and

below the reservoir. The ECAO will provide instructions

regarding reservoir operation and further reporting based on

this report. Also, immediately open the spillway gates. As long

as the gates can be opened to increase flows through the

spillway, there is a good chance of relieving pressure on the

dam embankment before major damage to the dam occurs.

11Ralph Beall and Tim Miller testified that, by the time of the events of the September

2013 storm, the Loveland Control Center had been relocated to the Casper Control

Center.

19

(5) A calculator program for flood routing is included in the SOP

[Standard Operating Procedures] at the control house. This

program will automatically compute changes in storage, inflow

and outflow rates through Lake Estes, and can be used as a

tool or aid to assist the operator during times of

communication loss. This program should be used only by

experienced operators familiar and competent with operation

of the calculator and should not be used in lieu of criteria

written in this Emergency Action Plan.

(6) The LCC should notify the Estes Power Plant Foreman to

contact all employees and schedule shifts for monitoring

Olympus Dam. These shifts will consist of a minimum of three

persons per 24 hour day, on a continuing basis, until the

emergency no longer exists. When the water surface

elevation at Lake Estes reaches 7,474.00 feet and a further

increase is indicated, begin opening the No. 3 radial gate

according to the following criteria:

(a) Record the elevation at time of arrival.

(b) Time the lake increase at 15-minute intervals, and record

the elevation at the end of 15 minutes

(c) Take the difference of the beginning and ending elevations

at the end of 15 minute interval and multiply by 10. This

calculation will provide the change in gate opening for

radial gate No. 3.

(d) Continue to operate the gate in this fashion for all

elevations greater than 7,474.00 feet.

(e) If the water surface elevation should reach 7,475.75 feet

and a further increase is indicted, begin opening the

remaining four radial gats according to these criteria:

i. Record the elevation at 15-minute intervals.

ii. Take the difference of the beginning and ending

elevations at the end of the 15-minute interval and

multiply by 5. This calculation will provide the range in

gate opening for the remaining gates.

iii. If the elevation should exceed 7,475.75 feet (within the

15 minute interval, use both equations to derive the

gate settings.

Note: Gate No. 3 uses a factor of 10 for the gate

positions. The remaining gates use a factor of 5. These

factors should not be used interchangeably as excess

flows will occur.

iv. When the lake level begins to recede, begin

decreasing gate openings according to the previously

mentioned criteria.

(capitalization and emphasis in original; alteration and footnote added). Tim Miller testified

at trial that, while the Hazard Specific Guidelines for floods would have been relevant to

20

the Bureau’s response to the September 2013 storm, events during the flood could have

necessitated resort to other Hazard Specific Guidelines as well, such as “erosion,”

“structural problems,” “failures of different items” including “operational equipment,” and

“seeps.” Mr. Miller further testified to his belief that, with respect to the Hazard Specific

Guidelines for floods, in particular, the instructions in paragraph (6) to raise Gate 3 at

7,474 feet of elevation, and the remaining gates at 7,474.75 feet of elevation, “[t]his whole

part was null and void during the flood,” for the reason that “Gate 3 was not operable.”

(alteration added). According to Mr. Miller, under normal circumstances, the Bureau

would “open Gate Number 3 until it reached the maximum remote operation, and then”

the Bureau could “bring people to the dam to manually open the other gates or to open

Gate 3 further” as necessary.

James VanShaar testified that he would not interpret the Emergency Action Plan

“as indicating that we should not have opened Gate Number 3[12] until arrival at 7474,”

and Mr. VanShaar stated that “[o]ther portions of the standing [sic] operating procedures

gives us flexibility to operate the gates for other reasons and in other ways, and we did

so.” (alterations and footnote added). Mr. VanShaar also testified, however, that when the

Emergency Action Plan is triggered, specific Emergency Action Plan requirements trump

more general rules in the Standard Operating Procedures, and that the Emergency Action

Plan is followed by operators in the absence of direction from the water schedulers.

A filled-out version of the form provided for in paragraph B.1. of the Hazard Specific

Guidelines is included in the record before the court. The form, titled “REPORT OF

EMERGENCY OR UNUSUAL OCCURRENCE,” indicates that it was completed by

Howard Bailey, the Bureau’s security officer. (capitalization and emphasis in original). The

Report of Emergency or Unusual Occurrences provides that Lake Estes reached an

elevation of 7,473.89 at 11:30 p.m. on September 12, 2013, and that at 11:45 p.m. that

night, Lake Estes experienced an inflow of 5,391 cfs and outflow of 5,377 cfs. The Report

of Emergency or Unusual Circumstances further provides a brief summary of the events

of the September 2013 storm at Olympus Dam:

Water Scheduler Carlos Lora contacted Emergency Manager Howard

Bailey at/around 02:00 hrs and notified him of a heavy rain storm in the

Estes Park area. This rain storm and the subsequent runoff is likely to

continue raising the reservoir elevation and resulting in increased releases

from Olympus Dam. Carlos recommended an Internal Alert (IA) that was

subsequently declared upon consultation with the ECAO IMT. C-BT

[Colorado-Big Thompson] Facility Manager Ralph Beall was appointed as

Incident Commander.

(alteration added).

12Mr. VanShaar referred to Gate 3 in his explanation of the Emergency Action Plan,

despite Gate 3 having been inoperable during the September 2013 storm.

21

Plaintiffs’ Properties

Downstream of Olympus Dam, in Drake, Colorado, an unincorporated community

in the Big Thompson River Canyon, is the confluence of the Big Thompson River and a

tributary, the North Fork Big Thompson River. The parties stipulated that the North Fork

Big Thompson River “has a separate watershed from the Big Thompson River,” and

above the confluence, releases from Olympus Dam do not affect flow in the North Fork

Big Thompson River. The parties further stipulated that, at the time of the September

2013 events relevant to the case currently before the court, plaintiffs Howard and Lena

Carman and Elizabeth Orr were owners of properties on the Big Thompson River

downstream of both Olympus Dam and of the confluence at Drake, Colorado. The parties

also stipulated that water released from Olympus Dam takes multiple hours to reach the

properties of the plaintiffs, although the parties disagree on the approximate number of

hours from the time of release from Olympus Dam before released water reaches the Orr

and Carman properties. Because plaintiffs’ properties were both downstream of Olympus

Dam, in the Big Thompson River Canyon, as well as being downstream of the confluence

at Drake, the primary events of the September 2013 storm which are relevant to this case

occurred at Lake Estes and Olympus Dam or downstream thereof. The relevant releases

from Olympus Dam are all downstream into the Big Thompson River, towards plaintiffs’

properties.

The parties stipulated that Ms. Orr owned in September 2013, and continues to

own, property off Highway 34 in Loveland, Colorado, “more than twelve-and-a-half miles

downstream from Olympus Dam and more than half-a-mile downstream of the confluence

of the rivers at Drake.” Ms. Orr testified that at the time of the September 2013 flood, the

property off Highway 34 was the site of a cabin originally built by Ms. Orr’s grandfather,

which was expanded in 2003 and 2004 into the structure that existed in September 2013.

Ms. Orr testified that she has been the sole owner of the property off Highway 34 since

1976.

Ms. Orr testified, to her recollection, that the Big Thompson River flooded once

prior to the September 2013 storm, on July 31, 1976. According to Ms. Orr, during the

events of the 1976 flood, “it had rained off and on for several days,” but there was not

“particularly heavy rain in the canyon,” and in the Big Thompson River, “the water level

was less than in the 2013 [flood].” (alteration added). When asked about the damage of

the 1976 flood to the property, Ms. Orr testified: “We did lose our septic system, and we

lost our well, our water well, but there was no damage at all to the house.” Ms. Orr further

testified that the United States Army Corps of Engineers added “riprapping” to the banks

of the Big Thompson River following the 1976 flood.

At the time of the September 2013 storm, Ms. Orr testified that her house was

located approximately 150 feet from the bank of the Big Thompson River, although the

older portion of the house, which was built by Ms. Orr’s grandfather, was located closer

than 150 feet to the river. Ms. Orr’s property is located on the southern, or right, bank of

the Big Thompson River and was connected to Highway 34 by a bridge over the Big

Thompson River. At the time of the September 2013 storm, there were multiple structures

on the property, including Ms. Orr’s house, a barn, a second house identified by Ms. Orr

22

as “a play house for our children,” and a playground. According to Ms. Orr’s testimony,

prior to the September 2013 flood, the Big Thompson River flowed “much closer to the

highway” than it currently does, and Ms. Orr’s property had a large yard between the river

and the house, as well as a buried septic system located in front of the house,

approximately 150 feet from the Big Thompson River, which had been installed after the

1976 flood. Between the yard and the house were a rock wall, described by Ms. Orr as

two-and-a-half to three feet high, the driveway that originally led to the older portion of the

cabin, and a second rock wall. Ms. Orr testified that her house was “15 to 20 feet” higher

in elevation than the Big Thompson River.

The parties stipulated that, at the time of the September 2013 flood, Howard and

Lena Carman, a married couple, owned two adjacent parcels of land on Highway 34 in

Loveland, Colorado. According to the parties’ stipulations, the Carmans’ home was

located on one parcel on Highway 34, and on the adjacent parcel on Highway 34 was

located the business the Carmans owned and managed, the Big Thompson Indian Village

store (Indian Village store).13 According to the parties’ stipulations, the parcels owned by

the Carmans “were about fifteen miles downstream from Olympus Dam and at least two

miles downstream of the confluence of the rivers at Drake,” approximately one-and-a-half

miles downstream from Ms. Orr’s property. Mr. Carman testified, corroborated by the

Carmans’ deed to their property, that the Carmans, also owned an access easement over

the eastern portion of an adjacent parcel, owned by Larimer County, Colorado,

immediately to the west of the Carmans’ property. According to the testimony of Mrs.

Carman at trial, the Carmans’ property was approximately 1,000 feet lower in elevation

than Estes Park. Mrs. Carman testified that the Carmans first moved into their property in

1971, based on an agreement to lease the property for five years before purchasing it.

Mr. Carman testified that the Carmans purchased their property in 1976.

Mr. Carman testified, similar to Ms. Orr, that prior to the September 2013 flood, the

Big Thompson River had flooded in 1976. Mr. Carman testified that in the 1976 flood,

falling power lines damaged the back corners of the Indian Village store, and the only

damage to the Carmans’ house was to the basement, where a “four-foot section” of wall

and corner “collapsed” and were “knocked out” by the 1976 flood. Mr. Carman further

testified that the Carmans also lost a “guest cabin” and a barn in the 1976 flood. The

Carmans purchased their property shortly after the 1976 flood, and the real estate

contract by which the Carmans purchased the properties indicates that the Carmans were

aware that the properties “may be located and situate in a flood plain.” At trial, the

Carmans testified that because the lower portion of their property was located in a flood

plain, the Carmans did not construct any permanent structures on that portion of their

land. According to a plat included in the warranty deed which conveyed the Carmans’

properties to the Colorado Department of Transportation in 2016, the flood plain occupied

a substantial portion of both parcels owned by the Carmans along the north bank of the

Big Thompson River.

13 According to the testimony of Mr. Carman, at the Indian Village store, the Carmans sold

“Indian stuff, rugs, pottery, jewelry, moccasins,” as well as “T-shirts” and “curio items.”

23

The Carmans’ parcels were located on the northern, or left, bank of the Big

Thompson River, along a bend of the river. The Carmans testified that they had multiple

structures across the property, including the Carmans’ house, the Indian Village store, a

large, roughly S-shaped concrete wall which created a higher area of ground on the

Highway 34 side of the property, as well as a horse trailer and a Connex14 box located on

the lower portion of the property. On a grassy lawn by the river, behind a horse trailer and

Connex box, the Carmans kept two horses15 in corrals which at the back were

approximately four or five feet from the Big Thompson River. Mr. Carman testified at trial

that at the highest point, the property was approximately 14 or 15 feet higher in elevation

than the riverbank, and 20 or 21 feet higher in elevation than the water. According to the

testimony of Mrs. Carman and a map of the property she had drawn, the Carmans’

property was approximately 200 feet wide at the widest portion, from the parking lot of the

Indian Village store to the Big Thompson River, while the house and store were

approximately 75 feet from the Big Thompson River. On the north side of Highway 34,

across from the parking lot in front of the Indian Village store, was a lower section of

ground, which Mr. Carman at trial estimated was approximately six feet lower than the

parking lot of the store and was referred to as the “borrow ditch.” Behind the Indian Village

store, the Carmans had a footbridge which reached across the Big Thompson River,

which also carried a pipe which brought non-potable water from a hydroelectric plant

located across the river.

Events of the September 2013 Storm

According to the parties’ joint stipulations, under ordinary circumstances, “[t]he

Bureau of Reclamation constantly releases water from Lake Estes into the Big Thompson

River throughout the year,” in order “to serve downstream water rights or environmental

purposes,” and the Bureau of Reclamation “must release a minimum amount of water,”

which “ranges between 25cfs and 125cfs depending upon the time of year,” “from behind

Olympus Dam into the Big Thompson for environmental purposes.” (alteration added).

The parties also stipulated that in the Big Thompson River Canyon, “[b]eginning at a flow

level of 1,500cfs, water begins to flood permanent residences,” while most structures “are

inundated at flows of 6,000cfs.” (alteration added).

The parties stipulated that, beginning on September 9, 2013, and lasting until

around September 16, 2013, “significant rainstorms stalled over Larimer County,

Colorado, including over Olympus Dam and the town of Estes Park.” During the

September 2013 storm, Estes Park, where Lake Estes and Olympus Dam are located,

received 11.54 inches of rain, while the average annual rainfall for Estes Park is 16.32

inches, and the average September monthly rainfall is 1.40 inches. Drake, the location of

the confluence of the Big Thompson River and North Fork Big Thompson River upstream

14Mr. Carman testified that a Connex box is “what you see like a semi going down the

road with.”

15In the parties’ filings, including the joint stipulations, as well as testimony at trial, the

Carmans’ animals are described interchangeably as “two horses” and as “a horse and a

mule.”

24

of plaintiffs’ properties, received 16.20 inches of rainfall during the September 2013 storm,

while the average annual rainfall for Drake is 16.84 inches and, and the average

September monthly rainfall is 1.50 inches. The parties stipulated that, in total, “15,640

acre-feet of water flowed into Lake Estes” during the September 2013 storm. According

to the parties’ joint stipulations, “[t]he peak of the storms” was a 48-hour period “between

September 11 and 13, 2013:” 3.90 inches of rain fell in Estes Park from 7:00 a.m.,

September 11, to 7:00 a.m., September 12, and 3.74 inches fell in Estes Park from 7:00

a.m., September 12, to 7:00 a.m., September 13. (alteration added). The parties’

stipulations also indicate that “[t]he annual exceedance probability of the September 2013

storm event ranged as low as 0.1%. In other words, the September 2013 storms may

have been a 1,000-year storm event.” (alteration added).

The parties stipulated that on September 12, 2013, multiple emergencies were

declared by federal, state, and local governments. Also according to the parties’

stipulations, “then-President Obama declared a federal emergency due to the storms and

flooding;” “then-Colorado Governor John Hickenlooper declared a disaster emergency

due to flooding in both Boulder and Larimer Counties;” and “[t]he city manager for the city

of Loveland, Colorado declared a local disaster on September 12, 2013 due to heavy

rains, flash flooding, closed roads, and property damage.” (alteration added). According

to the Post Incident Analysis Report prepared by the Bureau of Reclamation, however,

“[b]efore and throughout the flood event, the Olympus Dam Early Warning System did not

transmit any precipitation warnings.”16 (alteration added). According to the testimony of

Carlos Lora, who was the water scheduler on duty at the East Colorado Area Office of

the Bureau of Reclamation from the night of September 11, 2013, until the afternoon of

September 12, 2013, the Early Warning System’s failure to transmit a precipitation was

not the result of any malfunction in the system, but rather reflected that “the rainfall was

so slow coming,” and therefore did not trigger a warning.

Ms. Orr testified that on September 9 and 10, 2013, the area experienced “rain

showers” and the water in the Big Thompson River near her property was approximately

two feet below the riprap on its banks. The parties stipulated that prior to approximately

September 11, 2013, the Bureau of Reclamation “was releasing 80cfs through Olympus

Dam into the Big Thompson River,” as well as “diverting 560cfs through Olympus Tunnel.

The water level of Lake Estes was approximately 7,473.2 feet.” Mrs. Carman testified at

trial that on September 8, 9, and 10, 2013, it was raining “off and on,” including a break

in the rain the morning of September 10, 2013, and during that time the Big Thompson

River was not noticeably higher than its normal flow. Based on weather forecasts,

however, Mrs. Carman testified that she understood that there would be “a large storm

coming, to expect heavy rain,” especially “through Boulder, Lyons, and Estes Park,”

upstream from plaintiffs.

16 The Post Incident Analysis Report states that the Early Warning System at Olympus

Dam “was calibrated to transmit warnings for extremely intense rainfall events (0.75

inches in 30-minutes or 1.50 inches in 1-hour). This rainfall event did not exceed these

intensity thresholds, but other early warning systems elsewhere in Rocky Mountain

National Park were triggered by the event.”

25

According to the testimonies of Tim Miller and Anthony Curtis, the Bureau of

Reclamation Resources Division chief, a team of water schedulers, operating within the

Water Resources Group of the Resources Division of the Bureau, direct water releases

from Olympus Dam, and “develop[] daily water schedules and long-term water schedules

for movement of water to deliver to participants and contractees” in the C-BT Project.

(alteration added). According to the testimony of Mr. Miller, the water schedulers’ function

is to determine at what times and places to release water into the Big Thompson River as

it is requested by contract holders. Commonly the water schedulers will release water into

the river at the points where demand for power is the highest, so as to maximize power

generation with their releases. According to the testimony of Mr. VanShaar, “[t]he Water

Resources Group is responsible for issuing the water orders” each day, which “describes

and prescribes the actions to move water through the system,” as well as “oversee[ing]

portions of the Frying Pan, Arkansas, project, [sic17] and provid[ing] an oversight role for

the Trinidad project in Southeastern Colorado.” (alterations and footnote added).

According to Mr. VanShaar, water schedulers rely on “physical and statistical modeling,

a role for forecasting, data analysis, data issuing,” as well as “maintain the data flow from

various gauges.”

According to the testimony of Anthony Curtis, the water schedulers develop water

orders which “specify the number of acre-feet [of water] to be delivered through each

facility” of the C-BT based on requests submitted by Northern Water. (alteration added).

The water schedulers send water orders to a number of entities, including Northern Water

and WAPA, discussed above, and “the State Engineer’s Office, the district engineers,

Colorado Parks and Wildlife, and counties and cities within the C-BT,” according to the

testimony of Mr. Curtis. According to Mr. VanShaar and Mr. Lora, the water order for each

day typically is released between 3:30 p.m. and 5:30 p.m., and contains a record of the

instructions from that day as well as prospective instructions for the remainder of that day

and for the next day.

At trial, Mr. VanShaar and Mr. Lora testified that the water scheduler on duty for

September 11, 2013, into the morning of September 12, 2013, was Mr. Lora. Mr.

VanShaar testified that during the storm, particularly between September 11, 2013, and

September 13, 2013, the Bureau of Reclamation deviated from the water orders’

instructions, “[s]ometimes as frequently as once an hour or maybe slightly more frequent,”

due to changes in the rain and runoff, and accompanying impacts on C-BT Project

facilities. (alteration added).

Mr. Lora issued a water order in the afternoon of September 10, 2013, which

contained prospective changes to flow in the C-BT Project through September 11, 2013.

The September 10, 2013, water order states:

The Adams Tunnel flow will be reduced this evening to 450 cfs due to the

stormy weather impacting the area. Depending on weather condition and

17“Frying Pan, Arkansas, project” is how the name of that project appears in the transcript,

however, the name of that Bureau of Reclamation project is actually spelled “Fryingpan-

Arkansas Project.”

26

the runoff situation, we may decide to adjust that flow again tomorrow. The

reduction will affect Marys and Estes powerplants output.

Despite the wet weather the region is experiencing today and tomorrow, we

expect the Adams Tunnel to continue running high flows for the next several

days. But towards the end of the month, conditions will change, and the

diversions through Adams Tunnel will have to be reduced. After September

26th the flow will be reduced to only match demands for C-BT water. The

reason for the flow reduction late this month is the outages scheduled for

Flatiron Powerplant unit #3 and for the Charles Hansen Feeder Canal 550

Section. The annual maintenance for Flatiron unit #3 is scheduled to begin

on September 23rd and will last 6 weeks, while the Charles Hansen Feeder

Canal 550 Section work will begin on September 27th and will last only 2

weeks. Pumping to Carter Lake will likely resume late this week and will

continue for 7 to 10 days.

The Estes Powerplant will have 800 acre-feet of water scheduled for power

generation on Wednesday, a significant reduction from today’s volume.

Meanwhile, Flatiron units #1 and #2 will have 1,100 acre-feet available.

The September 10 water order includes among its “summary of flow changes,” at

midnight, September 11, “[a]djust the Adams Tunnel flow from 500 cfs to 450 cfs,” and at

7:00 a.m., September 11, “[a]djust the Big T [Thompson] Powerplant flow from 230 to 237

cfs.” (alterations added). With respect to the order to reduce flow through the Adams

Tunnel, Mr. Lora testified that “during the day there had been rain in the area, so we

wanted to make sure that we didn’t go over the capacity of the system.”

Mr. Carman testified at trial that on September 11, 2013, the Carmans did not open

their store because the day was forecast to be rainy and cold, and the Carmans believed

that “people would stay in the house.” Mr. Carman also testified that the water in the Big

Thompson River on September 11, 2013, was “a little higher” than it would otherwise

have been, “like a spring runoff,” while Mrs. Carman testified that the river on September

11 was “[w]ell within its banks.” (alteration added). Ms. Orr testified at trial that on

September 11, 2013, as late as approximately 8:00 p.m., she drove from Estes Park to

her property down Highway 34, and at that time “[i]t wasn’t raining hard at all,” while the

river was “still below the riprap” and within its banks. (alteration added).

At trial, Mr. Beall testified that, at some point prior to the peak precipitation of the

September 2013 storm, he visited the Pole Hill Powerplant, the Flatiron Lake Powerplant,

and the Big Thompson Powerplant. Mr. Beall was unable to identify the specific day or

days that he visited the powerplants, but he noted that, with respect to the road to the

Pole Hill Powerplant, a stream which crosses the road “got too large to cross, because

we ended up stranding one of our work trucks there.” Mr. Beall testified that “we had 550

[cfs] coming through our power plant in the afterbay, and whatever the gates at the bottom

of Hells Canyon that was picking up this natural flow was delivering.” (alteration added).

Mr. Beall states that “PS-2 Jeff Cross and I got personnel together,” and went “back down

to the bottom of Hells Canyon, and go out in the concrete structure where the stem valves

27

are and lower those gates to get us back to 550 at the [Pole Hill] afterbay,” with the intent

“[t]o close them so they’d quit diverting all the flood water that was coming down Little

Hells Canyon into our very small afterbay.” (alterations added).

Moreover, Mr. Beall testified that at Flatiron Reservoir, he observed that

“Cottonwood Creek, which normally runs very, very small, was bringing enough water into

Flatiron [Reservoir] that our reservoir elevation was rising, and water scheduling wanted

us to go check out the elevation circuits, make sure they were reading correct.” (alteration

added). At the Big Thompson Powerplant, Mr. Beall testified that he disconnected the

“regular power before it tripped” and “made the decision to get a generator on the deck

of the power plant and tie it in to the sump pumps,” in order to ensure “that we had

emergency power for our sump pumps to try and save that power plant.”

In the afternoon of September 11, 2013, Mr. Lora issued a water order containing

a summary of that day’s changes and prospective changes to flow in the C-BT Project

through September 12. The September 11, 2013 water order states:

The Adams Tunnel flow has now been reduced to 225 cfs due to the rainy

weather and the high runoff. The change has impacted power generation

for Marys and Estes powerplants. Inflow to Lake Estes tripled overnight, and

is now over 300 cfs. With more rain predicted for tonight and tomorrow,

there is a possibility that the generation for Marys and Estes powerplants

may have to be curtailed at some point. The situation will be closely

monitored. Any decisions will be made in a way that allows Western Area

Power Administration and other parties as much time as possible to adjust

to the changes.

Tomorrow at 0900 hours, the Flatiron unit #3 will begin pumping to Carter

Lake once again. We expect the pump to run between 7 and 10 days.

The Estes Powerplant will have 520 acre-feet of water scheduled for power

generation on Thursday, a significant reduction from today’s volume.

Meanwhile, Flatiron units #1 and #2 will have 1,225 acre-feet available.

The September 11 water order includes among its “summary of flow changes,” at 7:00

a.m., September 12, “[a]djust the Big Thompson Powerplant flow from 237 to 385 cfs.”

(alteration added). The September 11 water order also indicates, in its detailed list of flow

changes, the instruction to “[m]aintain a flow of 550 cfs,” in the Olympus Tunnel for both

September 11 and 12, 2013, as well as instructions to “[m]aintain a flow of 75 cfs” of

releases through the Olympus Dam into the Big Thompson River for both September 11

and 12, 2013. (alterations added). With respect to the Water Resources Group’s

motivation for reducing the Adams Tunnel flow, Mr. Lora testified that “we probably

anticipated that we were going to have a little bit more runoff than we had had the previous

days.” Mr. Lora further testified that flow in the Adams Tunnel was reduced “to

accommodate water from the Big Thompson River that was coming into the system,” with

the result that the powerplants at Marys Lake and Lake Estes would experience reduced

power generation.

28

At trial, Mr. Lora testified that when he left work at the Bureau of Reclamation’s

Fort Collins office the evening of September 11, 2013, he “called Casper Control Center

and asked them” to call him if the water in the Big Thompson River above Lake Estes

reached a flow of 525 cfs. According to the parties’ joint stipulations, the Bureau of

Reclamation’s response operations to the storm began “just after 11:30 p.m. on

September 11, 2013,” at which time “no dam operator was present at Olympus Dam.”

The Bureau of Reclamation’s Operating Log for the events of the September 2013

storm, kept by the Casper Control Center, is included in the evidence before the court.

According to the Operating Log as it appears in the record before the court, at 11:40 p.m.

on September 11, 2013, the gauge in the Big Thompson River above Lake Estes, which

measured the inflow to Lake Estes from the Big Thompson River, was reading a flow rate

of 525 cfs, an increase of 200 cfs from 7:00 p.m. earlier that evening. 18 At 11:40 p.m.,

Casper Control Center called Mr. Lora, pursuant to his earlier instructions. In response,

Mr. Lora instructed that the inflow from Adams Tunnel be reduced to 30 cfs, from 200 cfs,

and that the Estes Powerplant, through which water enters Lake Estes from Marys Lake,

be shut down. According to the parties’ joint stipulations, at that time the Bureau of

Reclamation reduced the inflows to Lake Estes as Mr. Lora instructed. Mr. Lora testified

at trial that he “direct[ed] operations from [his] home” the night of September 11.

(alterations added).

The Operating Log provides that at 12:18 a.m., September 12, 2013, “Lora called

to verify Estes [Powerplant] units were off line; notified him that BT [Big Thompson River]

Above is rising fast (now @ 650 cfs),” and that at 12:19 a.m., “Lora had me [Woodruff,

the Casper Control Center employee on duty] raise BT Below Oly [Olympus Dam19] Rad

[Radial] Gate #3 to verify we can control.” (capitalization in original; alterations and

footnote added). According to the parties’ joint stipulations, a short time after midnight on

September 12, 2013, the Bureau of Reclamation “began increasing its releases into the

Big Thompson River via remote operation of a single spillway gate” at Olympus Dam. The

Bureau would typically do this by remotely controlling Gate 3, the center gate, however,

as reflected above, Gate 3 “was not in service during the September 2013 storm and the

Bureau controlled spillway gate number 4 by remote operation.” At trial Mr. Beall

confirmed that “Radial Gate Number 3 was not operating at the time of the 2013 storm”

and the Bureau was “using Gate Number 4 in place of number 3 for the Casper Control

Center to operate” during the September 2013 storm. Mr. Beall testified that instructions

contained in the Emergency Action Plan for Gate 3 in emergencies would be understood

to apply to Gate 4, or Gate 2, depending on which gate was under remote operation.

The Post Incident Analysis Report prepared by the Bureau provides, in relevant

part:

18For comparison, according to the testimony of Mr. VanShaar, “the average inflow into

Lake Estes in September” is “around 75 CFS.”

19“Olympus," Olympus Dam,” and “Olympus Tunnel” are in some quotations abbreviated

“Oly,” “Oly Dam,” or “Oly Tunnel.”

29

As a precautionary measure, Gate No 3 was taken out of service prior to

the flood due to a gear box issue. The gear box parts had been ordered and

had not yet been installed; therefore, Gate No. 3 was not used for the

duration of this incident. Prior the [sic] flood, Gate No. 4 was transferred to

remote operation and was operated by CCC [Casper Control Center] up to

the 2.5 foot limit when the dam operator arrived at the dam. Upon arrival,

the operator was able to open Gate numbers 1, 2 and 5 to regulate reservoir

operation per instruction from water scheduling through CCC operators.

This storm event required opening of 4 of the 5 functioning gates and

required manual measurement of gate opening for determining operational

releases from the dam. For a single dam operator this is an arduous task at

best.

(alterations added).

At 12:40 a.m. on September 12, 2013, the Operating Log states: “Per Lora BT

Below to 180 cfs (+100 cfs); BT Above is now 731 cfs. Carlos [Lora] is calling Burke to

see if he can get personnel to E [Estes] PP [Powerplant].” (alterations added). At 12:50

a.m. on September 12, the Operating Log states: “BT Below to 280 cfs (+100 cfs) per

Lora, BT Above is 796 cfs.” According to the parties’ joint stipulations, during this period,

the water elevation in Lake Estes rose, and by “1:00 a.m. on September 12, the water

level of Lake Estes had risen to 7,473.5 feet.” The Operating Log at 1:05 a.m. on

September 12, states: “BT Below to 380 cfs (+100 cfs).” Mr. Jonathan Haywood, a Bureau

of Reclamation engineer, testified at trial that he received a phone call from Casper

Control Center around 1:00 a.m. on September 12, asking Mr. Haywood to “come up and

operate the [Olympus] dam to alleviate the water coming in.” (alteration added).

The Operating Log at 1:30 a.m. on September 12, 2013, states: “BT Below to 480

cfs (+100 cfs); BT Above 1007 cfs.” The Operating Log at 1:35 a.m. further states: “Lora

called CCC; said to increase more out of BT Below +200 cfs to 680 cfs.” Mr. Haywood

testified that around 1:45 a.m., he arrived in Estes Park, and he described the weather

as “torrential rain, like I hadn’t seen before.” The Operating Log at 1:57 a.m. states: “Per

Lora BT Below to 900 cfs (+220 cfs); BT Above 1145 cfs E [Estes] FB 7473.62.” 20

(alteration added). According to the testimony of Mr. Lora, between approximately 1:30

a.m. and 2:00 a.m., September 12, the gauge reading the flow in the Big Thompson River

below Olympus Dam was lost, and as a result, through approximately the morning of

September 13, the Bureau of Reclamation did not have an accurate measurement of the

flow out of Olympus Dam.

The Operating Log at 2:01 a.m., September 12, 2013, states: “MLPP [Marys Lake

Powerplant] off (East Portal [Adams Tunnel] flow @ 200 cfs).” (alterations added).

20The meaning of “FB” in the context of the Operating Log is unclear from the evidence

before the court. Further, while it is not stated, the figure “7473.62” appears to indicate

that the elevation of the water in Lake Estes at 1:57 a.m. on September 12, 2013, was

7,473.62 feet.

30

According to the testimony of Mr. VanShaar, Marys Lake Powerplant, through which

water from the Western Slope flowed before reaching Lake Estes, “has a lower limit of

about 200 cfs, at which point it shuts off,” but Mr. VanShaar indicated he did not know if

Marys Lake Powerplant had been turned off by the Bureau of Reclamation or if the

powerplant had turned off upon reaching its lower limit. According to the parties’ joint

stipulations, Mr. Haywood “arrived at Olympus Dam at approximately 2:13 a.m. on

September 12, 2013,” in order to operate the spillway gates, and the Operating Log also

records Mr. Haywood’s arrival time as 2:13 a.m., September 12. Mr. Haywood testified

that he “had to operate the gates of Olympus Dam outside” in the rain, and that he was

“out standing on top of the dam.”

At trial, Mr. Lora testified that sometime “after midnight” on September 12, 2013,

he called “the person in charge of declaring those [internal alerts] and woke him up” in

order to “let him know that we may have to, you know, declare some kind of alert.”

(alteration added). According to the parties’ joint stipulations, “at approximately 2:30 a.m.,

the Bureau of Reclamation declared an internal alert at Olympus Dam,” which is “the first

and lowest of five alert levels at the dam.” According to the Operating Log, the Internal

Alert was declared “due to high inflows @ BT [Big Thompson River] Above, rain storm in

area.” (alteration added). Mr. Lora testified at trial that, upon the declaration of the Internal

Alert at Olympus Dam, he did not “look to the Emergency Action Plan to determine how

to adjust the outflows from Olympus Dam,” but instead made adjustments “based on

whatever the inflow at that point was into the dam,” in part because Mr. Lora directed the

operations of Olympus Dam from his home from the night of September 11 and

September 12, and he did not have a copy of the Emergency Action Plan at his home.

According to the parties’ joint stipulations, “[j]ust before 3:00 a.m.” on September

12, 2013, Mr. Haywood raised each of the four operational gates at Olympus Dam to an

opening of “approximately six inches.” (alteration added). The Operating Log states at

2:55 a.m. on September 12: “Haywood going to open all 5 Oly Radial Gates ½’ [foot] per

Lora ≈ 1100cfs.” (alteration added). At trial, Mr. Lora confirmed that he instructed that all

five of the radial gates at Olympus Dam be opened one-half foot, for an approximate

release of 1,100 cfs into the Big Thompson River. According to the testimony of Mr.

VanShaar, the release effected by Mr. Haywood opening the gates to six inches “would

certainly qualify” for a declaration of Response Level 1.

The Operating Log indicates at 3:40 a.m. on September 12, 2013:

Per Haywood, Oly radial Gate #3 Gear Box is not working [and] there is no

indication of gate opening – estimate is Gates 1, 2 & 5 are open 1’ [one foot]

each & gate #4 in CCC [Casper Control Center] indicates 1.39’ [feet] BT

Below ≈ 1200 cfs; BT Above 1285 cfs E [Estes] FB 73.81.[21]

(alterations and footnote added). The parties stipulated that the Bureau of Reclamation

declared Response Level 1 for Olympus Dam at 3:42 a.m. on September 12. According

21“E FB 73.81” in the Operating Log appears to indicate that the water in Lake Estes had

reached an elevation of 7,473.81 feet by 3:40 a.m. on September 12, 2013.

31

to the parties’ joint stipulations, following this declaration, at 3:45 a.m., the releases of

water through the spillway gates increased to more than 1,500 cfs into the Big Thompson

River. The parties’ joint stipulations further provide that the water in Lake Estes by this

point had risen to an elevation of 7,473.8 feet, leaving 2.4 inches of vertical space in the

reservoir’s operational pool. The Operating Log at 4:15 a.m. on September 12, 2013,

states that “Oly Gates 1,2, 4 & 5 are open ≈ 1 ½’ [feet] each,” and 25 minutes later, at

4:40 a.m., “Oly Gates 1, 2, 4 & 5 are open ≈ 2’ [feet] each, flow of 1400 cfs BT Below.”

(alterations added).

According to the parties’ joint stipulations, the Bureau of Reclamation declared

Response Level 2 for Olympus Dam at 5:15 a.m. on September 12, 2013, indicating

releases of at least 1,700 cfs, and the Operating Log states at 6:00 a.m. on September

12: “Per Howard Bailey; Response level 2 @ Olympus Dam; outflows expected to reach

1700 cfs.” The parties further stipulated that the National Weather Service, at 5:52 a.m.

on September 12, issued a flood warning for the area including the Big Thompson River

Canyon and other areas below Olympus Dam. According to the testimony of Mr.

VanShaar, Response Level 2 was declared “because at that time the outflows [from

Olympus Dam] were expected to reach 1700 cubic feet per second,” in excess of the

threshold for Response Level 2 set by the Emergency Action Plan. (alteration added). At

6:09 a.m. on September 12, Paula Baty22 sent an email to Mr. Bailey, Ms. Lamb, Mr.

Northrup, Mr. Pedersen, and four others, which indicated that Response Level 2 had been

declared, and stated that “[o]ur releases are expected to flood cabins in the canyon.”

(alteration added). At 6:15 a.m., September 12, the Operating Log states: “Per Lora lower

Oly Gates 1, 2, 4 & 5 to ≈ 1.5’ [feet] each.” (alteration added).

Mr. VanShaar testified that on the morning of September 12, 2013, “[t]he rain was

still strong and without break, which is a little unusual for Colorado,” that “[t]his was a

sustained rain” and “continual,” while “there was limited visibility” in the direction of the

mountain, and “[t]here were no breaks in the clouds.” (alterations added). Beginning on

the morning of September 12, 2013, the Water Resources Group “moved from a regular

eight-hour shift” to alternating shifts of twelve hours on and off, “around the clock, for the

next several days.”

According to the testimony of Mr. Carman, on the morning of September 12, 2013,

the Big Thompson River “was running bank full” and “was coming up on the sides of that

riprap” near the Carmans’ property. Mrs. Carman similarly testified that the Big Thompson

River was “flowing pretty heavily,” that it was “two or three feet” below the edge of the

bank, approximately half of the five to six feet distance from the bottom of the river to the

banks, and because of the water’s movement “you couldn’t see the bottom of the river.”

According to Mrs. Carman, because of the increased height of the river and weather

forecasts, Mr. Carman moved much of his equipment, including his backhoe, out of the

22As noted above, at trial Ms. Baty, a safety engineer at the Bureau of Reclamation’s

East Colorado Area Office, went by the name Paula O’Brien.

32

lower portion of the Carmans’ property, located in a floodplain, to the higher section of

their property closer to the highway.

The Operating Log at 7:10 a.m. on September 12, 2013, states: “Per Carlos [Lora],

lower BT-below radial gates ¼’ [foot] or 3” [inches] = 1:10 on gate # 4, gates # 1, 3 & 5

show no indication.”23 (alterations added). At 7:14 a.m. on September 12, the Operating

Log further states: “Per Carlos [Lora], Take Big-T-PP [Big Thompson Powerplant] off &

just pass extra water to flow-North (Big-T # 1 off)?” (alterations added). Mr. Miller testified

at trial that at 7:32 a.m. on September 12, he sent a text message to Mr. Lora and Ms.

Lamb at the Bureau of Reclamation indicating that the Bureau could begin capturing

water, and that the Big Thompson Powerplant and the Wasteway24 should be turned off

to allow the water to be captured at Horsetooth Reservoir.25 Mr. Miller was unaware,

however, of whether Mr. Lora or Ms. Lamb took his advice and began storing water as

Mr. Miller had suggested.

Ms. Orr testified that between approximately 7:30 a.m. and 9:00 a.m. on

September 12, 2013, she received a recorded emergency “reverse 911” phone call to her

home landline telephone informing her of the need to evacuate her home.26 According to

23The Operating Log does not clarify the meaning of “no indication” at 7:10 a.m.,

September 12, 2013.

24 At trial, Mr. VanShaar referred to the Wasteway as “the second portion of the

trifurcation.”

25 Mr. Miller’s advice to begin capturing water appears to indicate that the Big Thompson

River was in a “free river condition.” In his testimony at trial, Mr. Curtis defined a “free

river condition” as one where the water in the river system exceeds the amount of water

allocated to those holding rights to the water. Mr. Curtis explained at trial that during a

free river condition, water can be captured from the river system without regard to

priorities or rights in that water. According to the testimony of Mr. Beall, during a free river

condition the Bureau can capture water by diverting it via the 550 Section of the Charles

Hansen Feeder Canal to the Horsetooth Reservoir.

26 Admitted at trial without objection, but not testified to, is defendant’s exhibit 2006, a

“Broadcast Detail Report” which states it is “provided by Everbridge” and was described

by defendant’s counsel at trial as the “certified business records of the Larimer

Emergency Telephone Authority” documenting “emergency broadcasts to the Big

Thompson Canyon during the 2013 storm.” The Broadcast Detail Report includes records

of two emergency calls which appear to have been made in the window of time in which

Ms. Orr testified she received her “reverse 911” phone call. One “Broadcast Summary”

included in the Broadcast Detail Report indicates that an emergency call was sent to 183

“Members” on September 12, 2013, between 7:11:24 a.m. and 8:11:00 a.m. The

Broadcast Detail Report indicates that another emergency call was made, also on

September 12, 2013, to 71 “Members,” between 7:21:53 a.m. and 8:21:00 a.m. Both calls,

according to maps included in the Broadcast Detail Report, were made to locations along

Highway 34, the highway along which the Orr and Carman properties were located.

33

Ms. Orr’s testimony, Ms. Orr did not evacuate her home upon receiving the call, and

afterwards, based on a conversation she had with an unidentified person who “came

down as far as they could on Highway 34,” she understood that Highway 34 was out both

towards Estes Park and towards Loveland, further down the Big Thompson River Canyon.

Around the time she received the recorded call, Ms. Orr testified that the water in the Big

Thompson River had risen two feet from its usual height, above the riprap on the bank,

and had come onto the grassy yard fronting the river on her property. Water from the Big

Thompson River continued to flow onto Ms. Orr’s property for the remainder of the day,

while Ms. Orr testified that she remained at her home.

According to Lake Estes elevation data, jointly submitted by the parties, for the

period from September 11, through September 13, 2013, at 8:00 a.m. on September 12,

2013, the elevation of the water in Lake Estes was 7,472.16 feet, approximately 1.65 feet

lower than its elevation at around 3:40 to 3:45 a.m. that same morning. Beginning

between 8:00 a.m. and 8:30 a.m. on September 12, the elevation of Lake Estes rose until

1:30 p.m. on September 12, when the elevation reached 7,473.7 feet.

The Operating Log at 9:30 a.m. on September 12, 2013, states: “Adams tunnel to

0 cfs per Carlos [Lora].” (alteration added). Mr. VanShaar testified that this closing of the

Adams Tunnel gate was the first attempt to stop flows entering from the Western Slope

of the Continental Divide. At 9:39 a.m. on September 12, 2013, Mr. Lora sent an email to

Michael Collins, Jacklynn Gould, Charles Pedersen, Ralph Beall, Carlie Ronca, David

Burke, Howard Bailey, Paula Baty, Adam Northrup, Kara Lamb, and James VanShaar,

all of the Bureau of Reclamation, which Mr. Lora testified was unusual but done “to inform

management of what was happening.” In the email, Mr. Lora stated: “1- Last night

releases from Oly Dam were increased to perhaps as much as 2,000 cfs (estimated). The

rating for the gage below does not go that high, so the flow could not be measured.”

(alteration added). Mr. Lora testified at trial that estimation of the releases was necessary

because the flow gauge below Olympus Dam had been lost between approximately 1:30

a.m. and 2:00 a.m. on September 12, and was not providing accurate information during

September 12 and the morning of September 13. In the email, Mr. Lora further stated:

2- Inflow to Lake Estes exploded rapidly after midnight.

3- The Adams Tunnel was shutdown at midnight, while the generation for

Marys ad [sic] Estes Powerplants was stopped.

4- Four gates were used to chase the flood.[27]

5- Notifications began just after midnight among ECAO personnel, and later

expended to outside agencies (Howard [Bailey] and Kara [Lamb]).

27 At trial, Mr. Lora explained that when the Bureau of Reclamation was “chas[ing] the

flood,” “[w]e were increasing releases until we were able to match the inflow.” (alterations

added).

34

6- The reservoir level reached 7473.8 ft before we were able to turn it

around. The upper operational limit is 7474.0 ft.

7- Currently the reservoir level is approximately 7472.50 ft and we are in the

process of reducing releases.

8- We estimate the current reservoir release to be approximately 1,400 cfs,

although we continue to adjust.

9- Big T [Thompson] Powerplant is now off. We are now in priority to capture

Big Thompson River water.

(alterations and footnote added). Mr. Lora testified at trial that at the time the email was

sent, “the inflows to the reservoir dropped unexpectedly, and even though we were trying

to level off the reservoir, it kept dropping and dropping. It’s a very small pool, so it’s very

reactive.” Mr. Lora further testified that at the time the email was sent, the State of

Colorado was allowing the Bureau of Reclamation “to capture as much water as we could

use in the lower part of the system to generate power,” and “we could actually keep the

water and put it Horsetooth Oregon [sic28] Carter Lake.” (alteration added).

At approximately 10:00 a.m. on September 12, 2013, Mrs. Carman testified that

she received a recorded emergency “reverse 911” phone call to her home landline

telephone, and the call left Mrs. Carman with the impression “that the Olympus Dam was

going to open one gate and that we were to expect some high water.”29 Mr. Carman

testified that at approximately 10:00 a.m., water from the Big Thompson River began to

flow onto the lawn of the Carmans’ properties, and Mr. Carman began relocating items

from the basement of the Carmans’ house to the first floor, in anticipation of the water

entering the basement. Additionally, according to Mrs. Carman’s testimony, Mr. Carman

moved the Carmans’ horses up from the corrals in the floodplain and the Carmans “locked

them in the yard between the house and the store” at the highest level of the property.

Mr. VanShaar testified that, around 10:30 a.m. on September 12, 2013, the Pole

Hill Powerplant, through which water flows when released from Lake Estes via the

Olympus Tunnel, was experiencing overheating problems. Mr. VanShaar indicated that

the crew at the Pole Hill Powerplant attempted to keep the plant operational for

approximately the next hour. Mr. Lora further testified that the Pole Hill Powerplant during

this time was “tripping,” or going offline, because of the sediment being carried by the

floodwaters, and that when the powerplant went offline, water could no longer flow

through it. Mr. Beall also testified that at the Pole Hill Powerplant, “[t]he water was so dirty

28The trial transcript records Mr. Lora as saying “Horsetooth Oregon Carter Lake.” Based

on the context in which Mr. Lora was speaking, it is more likely he actually said

“Horsetooth or in Carter Lake.”

29 The Broadcast Detail Report included in the record before the court does not appear to

document a “reverse 911” phone call which was made to the area in which the Carmans

lived within the approximate time frame stated by Mrs. Carman.

35

and carrying so much sediment that it was plugging up our filters, our strainers that we

use to intake water for cooling water for our bearings as we generate.” (alteration added).

According to the Post Incident Analysis Report, the Bureau of Reclamation decided

at approximately 10:30 a.m. on September 12, 2013, “to allow reservoir to rise slightly

(store water).” According to the testimony of Mr. VanShaar, the Bureau made the decision

to allow the reservoir to rise because

[w]e were buying time for our neighbors and our partners to respond to what

had happened overnight, both the folks that might be trying to get in the

canyon and get people out. The City of Loveland, which is about seven,

eight hours downstream of the dam, we were buying time for them to

respond as best they could. If we could use a little bit of that space and

delay further increases, we decided to do that.

(alteration added). According to the Post Incident Analysis Report, at 10:30 a.m. on

September 12, Mr. VanShaar was “announced as representative to the Loveland EOC

[Emergency Operations Center]” as well as “technical specialist,” and at this time,

“[c]ontinuous staffing by an ECAO technical specialist at the Loveland EOC begins.”

(alterations added). Mr. VanShaar described his work as the ECAO’s representative as

“interact[ing] with the City of Loveland and their response to help them understand what

we were doing on the river” for the duration of the storm. (alteration added). Mr. VanShaar

testified that at that time, the Bureau anticipated further “releases that could threaten lives

or property,” and that they “were buying time for the emergency response to move

forward, some of which would have been people to evacuate,” out of concern regarding

the water the Bureau had already released as well as potentially worsening conditions.

According to the parties’ joint stipulations, the Bureau of Reclamation declared

Response Level 3 for Olympus Dam at 11:30 a.m.30 on September 12, 2013, the highest

response level declared during the course of the September 2013 storm. The parties

further stipulated that the declaration of Response Level 3 by the Bureau of Reclamation

did not reflect a belief of “any danger of impending failure of Olympus Dam.” At trial, Mr.

VanShaar testified that “[w]hen we entered into Response Level 3, we knew we were

dealing with flows that would impact property and had the potential to impact the safety

of human life downstream.” (alteration added). Mr. Beall testified that the time between

the declaration of an Internal Alert and the declaration of Response Level 3, “[e]ight or

nine hours,” was the shortest such span of time that he could recall. (alteration added).

The Operating Log, however, does not record the declaration of Response Level 3 until

1:00 p.m. on September 12, 2013

The Operating Log at 11:39 a.m. on September 12, 2013, states: “PH [Pole Hill

Powerplant] #1 to local, taking unit off do [sic] to personnel safety reasons so crew can

30 Mr. Miller testified that he recalled attending a meeting at which the declaration of

Response Level 3 was decided, which occurred during “the night of the -- of the 12th,”

rather than the morning of September 12, 2013, as indicated in the parties’ joint

stipulations and the Operating Log.

36

leave the area.” (alterations added). According to Mr. VanShaar, by 11:46 a.m. on

September 12, no water was flowing through the Pole Hill Powerplant. Mr. VanShaar

testified that with the Pole Hill Powerplant shut down, the water in the Olympus Tunnel

was then rediverted through the Pole Hill Rediversion Structure in Little Hells Canyon,

and from there into Pinewood Reservoir.

The Operating Log at 12:00 p.m. on September 12, 2013, states: “Per Carlos [Lora]

+6” [inches] each Radial gate at Estes dam in 5 min [minute] increments.” (alterations

added). Mr. Miller testified at trial that “at noon on September 12th,” Olympus Dam was

releasing “approximately 3400 cfs,” per the notes taken by Mr. Miller contemporaneous

with the September 2013 flood event. The Post Incident Analysis Report states that “[a]t

around 1:00 p.m. on the 12th, unusually high local runoff” caused increased flow which

“raised the water surface elevation of Marys Lake above 8040.0 feet, pushing it into

Internal Alert.” (alteration added). The Operating Log at 1:00 p.m. on September 12

states: “Per Carlos [Lora] Oly Tunnel -150 = 400 [cfs] total. Per Howard Bailey Estes is

now at Response level #3, also Marys is now in an Internal Alert.” (alterations added). At

trial, Mr. Miller testified that the water schedulers decided to lower the flow through the

Olympus Tunnel because the Pole Hill Powerplant had been shut down, in order to

prevent the full 550 cfs flow from entering Little Hells Canyon. Mr. Miller testified that,

because Marys Lake, which was upstream of Lake Estes, had reached a water elevation

of 8,040.29 feet, near the top of its operational pool, due to increased flows from the storm

and triggering an Internal Alert, the water schedulers decided to allow water from Marys

Lake to pass downstream through the Estes Powerplant and into Lake Estes. The

Operating Log at 1:10 p.m. on September 12 additionally states: “Per Carlos [Lora]

increase Oly Radial Gate #4 (3”) & gate #2 (3”).” (alterations added).

The parties stipulated that as a result of taking the Pole Hill Powerplant offline, the

Rediversion Structure in Little Hells Canyon was inundated with flows from Olympus

Tunnel as well as natural inflows. Mr. VanShaar testified that the 1:00 p.m. on September

12 reduction in Olympus Tunnel flow occurred because “prior to that reduction, the 550

[cfs] would have been bypassed and landed in that natural channel [Little Hells Canyon],

where it would have joined with natural runoff from the rain, flowed down to the rediversion

site,” with the effect that “more water was being diverted into the rediversion than could

be handled by the infrastructure.” (alterations added). Mr. VanShaar further testified that,

as a result of the high flows, United States government property, including the “canal

banks” of the Rediversion Structure, was damaged.

Mr. Beall explained in his testimony that water had to be diverted away from the

Pole Hill Powerplant as a result of the influx of sediment, rather than simply shutting the

power generation off and allowing water to continue flowing through, “[b]ecause it has to

run through our turbine, and the bearings, when you make electricity, generated a lot of

heat. The bearings are water-cooled, and that cooling water has protection circuits of flow

and pressure that will not allow the unit to run unless they’re satisfied.” (alteration added).

To continue to run water through the turbines while the plant was shut down, Mr. Beall

testified, would have caused “catastrophic bearing failure.”

37

Mr. Beall further testified that “clos[ing] the gates between Pole Hill afterbay and

Little Hells Canyon” also was done “to prevent the very small levee of the Pole Hill

afterbay from being overtopped” between Pole Hill Powerplant and Pinewood Reservoir,

and thereby prevent the levee from sustaining damage. (alteration added). According to

Mr. Beall’s testimony, the Bureau of Reclamation also sought to “lower the water in the

930 section [of the Charles Hansen Feeder Canal],” in order to prevent adding water to

the Trifurcation system near the mouth of the Big Thompson River Canyon, downstream

of plaintiffs’ property. (alteration added). Mr. Beall further explained that in the previous

flood in 1976, a siphon located in the Trifurcation tore away after its “supports eroded and

washed away,” and the Bureau’s “concern was to lower the water in the 930 section so

that in the event the siphon tore away during this [September 2013] flood, we would not

be adding water to the river through the 930 section.” (alteration added). Mr. Beall testified

that “there was already flooding at the mouth of the canyon” near Loveland when the

Bureau decided to reduce the water in the 930 Section of the Charles Hansen Feeder

Canal, and the flooding was “from the main fork and the north fork of the Big Thompson

River, primarily, plus all the rainfall.”31 Mr. Beall indicated that water from the 930 Section

of the Charles Hansen Feeder Canal would contribute to the downstream flooding in

Loveland, which is “why we [the Bureau] turned off that source” by stopping additional

water from flowing into the 930 Section. (alteration added). According to Mr. Beall, the

decision to stop flows into the 930 Section impacted “the operation of the Olympus

Tunnel” because “[l]ong term, we have to have Olympus Tunnel closed to quit moving

water through the 930 [Section] unless we’re pumping to Carter [Lake] with Unit 3 at

Flatiron.” (alterations added). When asked to clarify that shutting off water flowing into the

930 Section did not necessitate closing the Olympus Tunnel, because “you [the Bureau]

would pump that to Carter [Lake],” Mr. Beall answered: “Right. We have – we have done

that many times, yes.” (alterations added).

According to the testimony of Mr. Lora, around 3:00 p.m. on September 12, 2013,

Mr. Lora returned to his home to rest and Mr. Miller assumed water scheduling duties.

According to the testimony of Tim Miller, after Carlos Lora left, the only schedulers on

duty at the Loveland office were Tim Miller and Ron Thomasson. The Operating Log at

3:00 p.m. on September 12 states: “Per Bailey releases out of Oly Dam are now @ 3600

cfs, still Response level 3.” (alteration added). According to Mr. Miller’s testimony at trial,

supported by Mr. Miller’s notes taken contemporaneously with the Bureau’s response to

the September 2013 flood, at 3:00 p.m. on September 12, flows through the Flatiron

Powerplant were lowered such that power generation was reduced by twenty megawatts,

while at the Estes Powerplant, flowing into Lake Estes, heightened flows increased power

generation by five megawatts. The Operating Log reflects the decision to increase flows

through the Estes Powerplant into Lake Estes, stating at 3:10 p.m. on September 12, “E

[Estes] #3 on per Miller as Marys Lake is to [sic] full (5 mw’s).” (alterations added).

At 3:15 p.m. on September 12, 2013, the Operating Log further states: “Oly Tunnel

-100 cfs = 300 per Miller.” (alteration added). Mr. Miller’s testimony and his

31 Mr. Beall clarified that, with respect to flooding in Loveland, he did not “know whether

flooding in Loveland came from other sources besides the Big Thompson River,” and

stated: “I don’t know where all that water came from.”

38

contemporaneous notes, which were admitted as an exhibit at trial, corroborate that the

Olympus Tunnel flow was decreased to 300 cfs, although Mr. Miller’s notes indicate that

such decrease occurred at 3:00 p.m. rather than 3:15 p.m. Mr. Miler testified that this

decrease of 100 cfs was ordered to “reduce the flow through Little Hells Canyon.” Mr.

Miller further testified that, assuming all other inflows into and outflows from Lake Estes

remained constant, the effect of reducing flows through the Olympus Tunnel would be to

increase the elevation of water in Lake Estes.32

The Operating Log at 6:00 p.m. on September 12, 2013, states: “Oly Tunnel -100

cfs = 200 per Miller.” (alteration added). At trial, Mr. Miller explained that “we were still in

bypass [of the Pole Hill Powerplant], over the Little Hells Canyon diversion dam, and it

[Olympus Tunnel] was just adding more flow to that canyon that didn’t belong there.”

(alterations added). Mr. Miller testified that the water flowing into Little Hells Canyon “was

going over the top of that diversion structure,” and that the Bureau employees “weren’t

able to capture it” in order to “bring it back to Pinewood Reservoir” and the terminal

reservoirs. Mr. Miller further testified that “assuming all other inflows and outflows

remained the same,” that “reducing outflows through the Olympus Tunnel” by 100 cfs

“would have increased” the elevation of water in Lake Estes “by 100 cfs” as a result.

Mr. Miller testified, supported by his contemporaneous notes from the September

2013 flood, that at approximately 7:00 p.m. on September 12, 2013, Olympus Dam Gates

1 and 5 were opened an additional three inches, leading to an increase in releases of 217

cfs. The Operating Log at 7:15 p.m., September 12, 2013, states: “Per Miller Increase Oly

Radial Gates by 217 cfs total of ½’ [foot] increase.” (alteration added). According to an

email, dated September 12, 2013 at 7:52 p.m. and verified by the testimony of Ms.

O’Brien, at 7:15 p.m., releases from Olympus Dam were approximately 3,800 cfs, while

“[i]nflow into Lake Estes is estimated to be 3,900 cfs.” (alteration added).

The Operating Log states at 7:25 p.m. on September 12, 2013, that “Oly Radial

Gate #1 & Gate #5 increased by 3” [inches] each – total opening 24” [inches].” (alterations

added). Mr. Miller testified at trial that the “total opening [of] 24” [inches]” on the Operating

Log reflected the “estimated” amount of the openings of Gates Numbers 1 and 5 by the

Bureau personnel at that time. (alterations added). The Operating Log further states at

7:35 p.m. on September 12, “Per Miller @ 2000 CHFC from 450 cfs to 350 cfs.” Mr. Miller

testified at trial that the entry at 7:35 p.m. on September 12 reflects an instruction he had

given to reduce flow through the Charles Hansen Feeder Canal, the canal downstream

of the Big Thompson River Canyon, by 100 cfs at 8:00 p.m. that same day. At trial, Paula

O’Brien testified that she agreed with the statement, contained in a Bureau of

Reclamation email from 7:52 p.m., that “[t]he dam is safe and performing well,” (alteration

added), and Ms. O’Brien explained that “the dam was being operated as we needed it to

be operated. We were able to pass the flows safely without experiencing any particular

damage to the facility that could affect the structure or the operation of the facility.” The

Operating Log further states at 7:55 p.m. on September 12, “[p]er Miller Increase Oly

32According to the testimony of Mr. VanShaar, no water order was issued in the afternoon

of September 12, 2013.

39

Radial Gates by ½’ [foot] – increase 3” [inches] on Gate #2 & Gate #4.”33 (alterations

added). Mr. Miller testified, supported by his contemporaneous notes from the September

2013 flood, that at approximately 8:00 p.m. on September 12, releases through Olympus

Dam increased by 220 cfs over the amount being released an hour previously, for a total

approximate flow, as the Bureau estimated at that time, of 4,000 cfs.

In an email sent by Ms. Baty to East Colorado Area Office personnel, including Mr.

Northrup, at 8:29 p.m. on September 12, 2013, Ms. Baty stated that “[d]am operators

have conducted visual inspections” of the Marys Lake Dikes, Olympus Dam, and the East

Portal Dam, “using the monthly OVIC forms[34] for guidance. There are no issues of

concern at any of the facilities in terms of the stability of those structures.” (alteration and

footnote added). Ms. Baty’s email further stated:

We intend to stay below First Fill at Mary’s [sic] and barring any unforeseen

equipment issues, are confident that we will be able to maintain control of

the reservoir level.

Another issue we are dealing with, that is influencing our flow operations, is

the condition of the Little Hells [Canyon] Diversion Dam. This is a low hazard

dam[35] but has significant affect [sic] on our operations of the Pole Hill

powerplant and the way we run water through the cbt [Colorado-Big

Thompson] system. If you recall it is associated with the afterbay of the Pole

Hill powerplant. We have been taking some of the inflows into Lake Estes

and running them through the Oly Tunnel to minimize river releases.

33 At trial, Mr. Miller did not fully clarify the meaning of the 7:55 p.m. entry. Mr. Miller

appeared to indicate that the notation “increase 3” [inches] on Gate #2 & Gate #4” referred

to an increase of three inches to the named gates in addition to the half-foot increase

otherwise prescribed for all gates in the 7:55 p.m. entry. (alteration added). Mr. Miller

stated immediately thereafter, however, “I don’t understand what that means,” referring

to the 7:55 p.m. entry, and when Mr. Miller was asked by plaintiffs’ counsel, “Is that

unclear, whether it’s a half-a-foot increase or a three-inch increase?” Mr. Miller

responded, “Yeah, it is.”

34At trial, Ms. O’Brien testified that “OVIC” stands for “Observations of Visual Inspections

Checklist.” She testified to the nature of the OVIC forms and indicated that engineers

performing inspections with the forms would only indicate a concern on the forms if they

discovered a change from a prior inspection. Mr. Northrup testified that OVIC forms “are

checklist forms that dam operators use to inspect a dam, and it’s a guideline form where

they read a question and they check yes or no.” Mr. Northrup further stated that the OVIC

form is “put together by engineers to assist dam operators for looking for problems.”

35Ms. O’Brien testified at trial that “low hazard dam” indicates “that, in the event of failure,

you do not expect either loss of life, and you don’t reasonably expect loss of, say, a high

economic value downstream.”

40

However, there has been damage to the stoplogs[36] and we have had to

reduce what we are taking through the tunnel in order to prevent further

damage. Personnel are in the process of getting to the site to see the

condition of the structure since we reduced flows.

(alterations and footnotes added). At trial, Mr. Northrup testified that “[f]irst fill is a water

elevation on a dam that we’ve never seen before, that the dam has never experienced

before.” (alteration added). Mr. Northrup stated that first fill37 had previously been reached

at Olympus Dam, at an elevation of 7,475.25 feet, and at that instance of first fill, Olympus

Dam did not fail.38

Mr. Miller testified, supported by his contemporaneous notes, that at approximately

8:30 p.m. on September 12, 2013, increases through Olympus Dam were increased by

an additional 220 cfs, however, the Bureau’s estimate of total flow through Olympus Dam

at this time was revised to 3,800 cfs.39 The Operating Log states, at 8:30 p.m. on

September 12, “Per Miller Increase Oly Radial Gate #4 by ½’ [foot].” (alteration added).

The Operating Log additionally states at 9:00 p.m., “Per Miller Increase Oly Radial Gate

#1, 2, 4 &5 by 3” [inches] each - CCC can only raise Oly Radial Gate #4 to 2.5’ [feet] (BT

Below ≈ 4100 cfs).” (alterations added). Mr. Miller confirmed in his testimony, also

supported by his contemporaneous notes, that at approximately 9:00 p.m. on September

12, releases through Olympus Dam were increased by 300 cfs, for a total flow of

approximately 4,100 cfs. Mr. Miller explained at trial that, while he requested at 9:00 p.m.

that all four operational gates be opened an additional three inches, Casper Control

Center, which was at that time remotely operating Gate 4, could not raise Gate 4 above

2.5 feet, because “the limiter on that Gate 4 was set to 2.5 feet.” Therefore, Mr. Miller

testified that at 9:06 p.m. on September 12, Gate 4 was taken off remote control and was

from that point controlled “by the people onsite” at Olympus Dam. The Operating Log

documents this change at 9:06 p.m. on September 12: “Oly Radial Gate #4 to LOCAL by

Lannis.” (capitalization in original). Mr. Miller clarified in his testimony that he “would give

36Ms. O’Brien at trial described a “stoplog” as “usually a wooden or a metal log that slides

down into channels such that you’re able to stop the flows at that location.”

37 “First fill” was described by Paula O’Brien as “the first time that the reservoir has filled

to a given elevation.”

38Mr. Northrup’s account of the first fill of Olympus Dam being at the elevation of 7,475.25

feet is supported by a text message sent at approximately 3:11 p.m. on September 12,

2013 by Ms. Baty to Mr. Northrup and nine others, which stated: “Oly dam first fill is

7475.25- we have a few feet there and are avoiding that anyway because of gate 3

position.”

39 Mr. Miller indicated at trial that the downward revision of the Bureau’s estimate of total

flow through Olympus Dam at 8:30 p.m. on September 12, 2013, was due to the Bureau

“getting a more accurate number of what the gate position opening was.”

41

the orders to Casper Control Center, and then they would give the orders to the operators

who were onsite at the dam.”

Mr. Miller testified, further supported by his contemporaneous notes, that at

approximately 10:30 p.m. on September 12, releases through Olympus Dam were

increased by 340 cfs, for a total release of approximately 4440 cfs. The Operating Log at

10:30 p.m. on September 12 states: “Oly Radial Gates #1, 2, 4 & 5 raised 3” [inches] each

per Miller.” (alteration added). Mr. Miller further testified that at 10:40 p.m. on September

12, there was a further increase of 330 cfs in Olympus Dam releases, for a total release

of approximately 4770 cfs. At 10:40 p.m. on September 12, the Operating Log states:

“Oly Radial Gates #1, 2, 4 & 5 raised 3” [inches] each per Miller,” with a total release of

approximately 4800 cfs. (alteration added). At 10:59 p.m. on September 12, the Operating

Log states: “Oly Radial Gates #1, 2, 4 & 5 raised 6” [inches] each per Miller ≈ 5300 cfs.”

(alteration added). At trial, Mr. Miller, again supported by his contemporaneous notes,

corroborated that at approximately 11:00 p.m. on September 12, releases through

Olympus Dam were increased, however, Mr. Miller testified that the increase was of 650

cfs, for a total flow through Olympus Dam of approximately 5,420 cfs.

According to data collected by the Bureau of Reclamation with respect to the

elevation of Lake Estes during the September 2013 flood, at 11:15 p.m. on September

12, 2013, the water in Lake Estes reached an elevation of 7,473.86 feet. According to the

same data source, fifteen minutes later, at 11:30 p.m., the water in Lake Estes reached

an elevation of 7,473.89 feet, the highest elevation recorded during the September 2013

storm. The Standard Operating Procedures for Olympus Dam, the Estes Powerplant, and

Lake Estes indicate that the storage capacity, or volume of water held, of Lake Estes at

7,473.8 feet of elevation is 2,442.3 acre-feet of water, while the capacity of Lake Estes at

7,473.9 feet of elevation is 2,460.0 acre-feet of water, indicating that one-tenth of a foot

of elevation increase from 7,473.8 to 7,473.9 feet corresponds to an increase of 17.7

acre-feet of storage capacity. At trial, Mr. Miller calculated, based on the storage capacity

of Lake Estes provided in the Standard Operating Procedures, that the increase in Lake

Estes’ elevation from 7,473.86 feet at 11:15 p.m. to 7,473.89 feet at 11:30 p.m. on

September 12 indicated an increase in storage capacity of 5.31 acre-feet.40 From the

figure of 5.31 acre-feet, Mr. Miller further calculated at trial, based on a “Reservoir Inflow

Calculation Sheet” included in the Post Incident Analysis Report prepared by the Bureau,

that the inflow from 11:15 p.m. to 11:30 p.m. was 257 cfs.

Mr. Miller testified at trial, supported by his contemporaneous notes, that at

approximately 11:30 p.m. on September 12, 2013, releases through Olympus Dam were

increased by 705 cfs, for a total release of approximately 6,125 cfs. The Operating Log

at 11:35 p.m. states: “Oly Radial Gates #1, 2, 4 & 5 raised 6” [inches] each per Miller ≈

6100 cfs.” (alteration added). Mr. Miller testified at trial that, “immediately before” he called

in the order “to release more than 6000 cubic feet per second,” Mr. Miller had a

40 Mr. Miller testified on cross-examination that, according to the Standard Operating

Procedures, the storage capacity of Lake Estes does not have “a direct linear relationship”

with water elevation, but rather a “curvilinear relationship,” and Mr. Miller allowed that it

was “possible” his calculation of the 5.31 acre-feet increase was inaccurate.

42

conversation via phone call with Mr. Bailey, Ms. Ronca, and Mr. Thomasson, at which Mr.

Miller recommended the increased release. Mr. Miller testified that he “and the other

participants on the call were aware that at a flow of 6000 cubic feet per second, most

structures in the Big Thompson Canyon below the [Olympus] dam would be inundated,”

(alteration added), for which reason Mr. Miller held the phone conversation to discuss the

potential release. Mr. Miller indicated, however, again supported by his contemporaneous

notes, that the Bureau “shortly thereafter” revised its estimate of the total release based

on measurements of Olympus Dam’s spillway gates to 5,280 cfs. Mr. Miller testified that

the water schedulers had access to a computer system, referred to as “a SCADA,” an

acronym which Mr. Miller did not define,41 which allowed the water schedulers to

determine “how much the reservoir, you know, was going up, what it would take

approximately to, you know, keep it [Lake Estes] from going above that, you know, 7474

[feet].” (alterations added). Mr. Miller stated that “we just, you know, made our -- our best,

you know, guess at how much would cause the reservoir to start to, you know, stop rising

and then start to -- start to decline, and we did exactly that.” Mr. Miller further testified that

at 11:30 p.m. on September 12, “we had inflow forecasts that were very large” and that

“we weren’t sure if the rain was going to continue, and we were getting very close to that

threshold” of 7,474 feet. Moreover, Mr. Miller testified on cross-examination that he

believed he was “not allowed to” increase the elevation of Lake Estes above 7,474 feet.

Mr. VanShaar testified that “[a]s we understand and applied the SOP [Standard Operating

Procedures], we would not have chosen to go above 7474.” (alterations added). Mr.

VanShaar explained his view that “it was understood by my water schedulers that we

would not choose to use that extra foot of capacity between 7474 and 7475 purposefully,

meaning we would make decision that would keep from entering that” buffer space.

Mr. Miller testified that, while the water schedulers considered increasing flow

through Olympus Tunnel in response to the water in Lake Estes approaching 7,474 feet

in elevation, the water schedulers did not do so because of the “physical reason” that

“[L]ittle Hells Canyon Diversion Dam was overtopping,” and that the Pole Hill Powerplant

“couldn’t run because it was so plugged up with the strainers, and they were having

difficulty getting personnel up to the plant to -- to get the plant running again.” (alteration

added). Mr. Miller further clarified that Little Hells Canyon, where water from the Olympus

Tunnel would be deposited, is only “a tiny little tributary” with “people’s property all along

that,” such that sending additional floodwater “could be a very, you know, bad thing to

do,” and moreover, “there’s nowhere ever [sic] does it say for our project to use flood

control to send it down another tributary to get rid of the water.” (alteration added).

The Post Incident Analysis Report prepared by the Bureau contains an estimate

and correction for the total release through Olympus Dam at approximately 11:30 p.m. on

September 12, 2013, which is in line with the estimate and correction given by the

Operating Log and Mr. Miller’s testimony. The Post Incident Analysis Report states at

41 At trial, Mr. Miller agreed with plaintiffs’ counsel’s characterization of the SCADA as “a

computerized data acquisition system that collects the data in near realtime from the

Bureau of Reclamation sensors” in Lake Estes. Mr. Miller further stated that the SCADA

is “somehow connected to the Western Area Power Administration’s system,” but did not

specify the nature of that connection.

43

11:32 p.m. on September 12: “Water keeps increasing into Lake Estes, now releasing

6,000cfs.” The Post Incident Analysis Report also states, however, that the “[p]ost-

incident calculated release is 5,283cfs.” (alteration added). At trial, Mr. VanShaar testified

that “the analysis after the fact tightened some of the estimates on the openings of the

reservoir gates,” to produce the lower release figure of 5,283 cfs, while according to the

parties’ joint stipulations, at the time of release Bureau personnel believed they were

releasing “a flow greater than 6,000cfs.”

The Operating Log at 11:41 p.m. on September 12, 2013, states: “Received

notification from Howard Bailey – notifying of releases from Oly Dam of 6000 cfs.”

According to the parties’ joint stipulations, at 11:45 p.m. on September 12 peak inflow

and peak release occurred simultaneously at Lake Estes and Olympus Dam, with inflows

estimated to be between 5,391 and 5,395 cfs, and releases estimated to be between

5,280 and 5,377 cfs. The Post Incident Analysis Report states that “inflows into Lake

Estes peaked between 4600 and 5300 cfs” at approximately “[j]ust prior to midnight,” and

that “the release from Olympus Dam went as high as 5280 cfs,” which peak release

“lasted less than two hours” before releases from Olympus Dam began to reduce.

(alteration added).

According to the Lake Estes elevation data collected by the Bureau of

Reclamation, after the increase in releases at 11:30 p.m. on September 12, 2013, the

water elevation in Lake Estes began to drop, reaching 7,473.87 feet at 11:45 p.m. on

September 12. There were no additional changes in releases after 11:30 p.m. on

September 12 for approximately one and a half hours, until around 1:00 a.m. on

September 13. During this period, releases from Olympus Dam continued at a consistent

rate of approximately 5,280 cfs. According to the Lake Estes elevation data collected by

the Bureau of Reclamation, at 11:45 p.m. on September 12 the Bureau was diverting 198

cfs through Olympus Tunnel. By 12:00 a.m. on September 13, the water elevation in Lake

Estes dropped to 7,473.82 feet. At trial, Mr. Miller stated that he did not start reducing

flows out of Olympus Dam at midnight on September 13 because “we weren’t sure if we

were out of the woods” at that time. The water elevation in Lake Estes continued to lower,

reducing to 7,473.75 feet at 12:15 a.m., and to 7,473.68 feet at 12:30 a.m. on September

13. Moreover, according to the Lake Estes elevation data collected by the Bureau of

Reclamation, which was admitted as a joint exhibit, the water elevation in Lake Estes

would continue to reduce until approximately 7:15 p.m. on September 13.

Mr. Miller testified, supported by his contemporaneous notes, that at approximately

1:00 a.m. on September 13, 2013, the Bureau reduced releases through Olympus Dam

by 220 cfs, for a total release of 5,060 cfs, down from the revised peak release figure of

5,280 cfs. The Operating Log at 1:00 a.m. on September 13 states: “Oly Radial Gates #1

& #2 reduced by 4” [inches] each- per Miller, flow of ≈5000 cfs.” (alteration added). Mr.

Miller testified that the amount by which the water schedulers decided to reduce outflows

was not the result of a calculation, but rather reflected a desire to reduce outflows “slowly”

because “we weren’t sure if there was more to come in and whatnot.” Mr. Miller further

testified that “during that entire time period between 11:45 p.m. [September 12] and 2:00

a.m. [September 13],” there were releases “at or above 5000 cubic feet per second

through the Olympus Dam.” (alterations added).

44

The Operating Log at 2:00 a.m. on September 13, 2013, states:

Per Miller, Oly Radial Gate # 1, 2 & 5 are @ 36” [inches] (-4”). Gate # 4

started to go closed per Lannis – he raised it back up & now can’t get it to

raise or lower (currently @ 39”) – Electrician on his way to check situation

≈ 4425 cfs.

(alteration added). The Operating Log at 3:07 a.m., September 13, 2013, states: “Per

Jonathan [Haywood]; Gate # 4 is now operational and open 36” [inches]. Breaker had

tripped on overload.” (alterations added).

According to an email sent by Mr. Lora to Ms. Ronca at 10:28 a.m. on September

13, 2013, Mr. Lora was back at his office and performing his duties as water scheduler

by approximately 4:00 a.m. that morning. At 6:58 a.m. on September 13, Mr. Lora sent

an email to Ms. Ronca stating that as of the morning of September 13, Olympus Dam had

received 6.5 inches of rain in two days. The 6:58 a.m. email also stated, in relevant part:

3- Lake Estes release up to 5280 cfs last night, back down to 4,300 cfs.

Reservoir level is dropping slowly. Current inflow is 4200.

4- Fate of Pole Hill’s afterbay and Little Hells Canyon facilities unknown but

suspected damaged.

5- Olympus Tunnel flow down to 190 cfs.

6- Signal from Dille Tunnel diversion structure and from the Canyon Mouth

gage [sic] are lost.

7- Flatiron Powerplant still generating power. Unit #3 stopped pumping last

night at 0100 hours (not enough water).

8- We are in priority to capture Big Thompson River water, but given the

situation that is being done on a limited basis. Water is now been sent to

Horsetooth.

(alteration added). The Operating Log at 7:00 a.m. on September 13, states: “BT [Big

Thompson] crew reports BT PP [Powerplant] has taken on water.” (alterations added).

The Operating Log at 7:55 a.m. further states: “Received a call from Howard Bailey BT

Below peak flow last night was 5280 cfs – current flow is 4200 cfs.”

The Operating Log at 11:40 a.m. on September 13, 2013, states: “Oly Operator

reports 4 Oly gts [sic] 30” [inches].” (alterations added). At 11:59 a.m. on September 13,

Ms. Baty sent an email to Mr. Northrup, Mr. Beall, Mr. Bailey, Ms. Lamb, and thirteen

others, who were not identified at trial, which stated that “Olympus Dam, Mary’s [sic] Lake

Dike, and East Portal Dam visual inspections today revealed no concerns. We maintain

a R3 [Response Level 3] at Olympus [Dam] and still an Internal Alert at Mary’s [sic] Lake,

although the elevation has dropped below the trigger.” (alterations added). The 11:59

a.m. email further states, in relevant part:

45

We have experienced damage to the [Little] Hell’s Canyon Diversion Dam

stoplogs, and flows through the Olympus Tunnel were reduced to 200 cfs,

as a result. We have not since been able to get into that location to evaluate

damage further. We are also restrict [sic] from being able to access Pole

Hill powerplant right now.

The Big Thompson River is eroding around the concrete supports for the

siphon that spans the River, carrying the Charles hansen [sic] Feeder Canal

flows to Horsetooth Reservoir.

(alterations added).

The Operating Log at 1:00 p.m. on September 13, 2013, includes two entries

regarding Olympus Dam and Olympus Tunnel: “Per Lora Oly gts [sic] -3” [inches] = 27”

(Gates (1, 2, 4 & 5)” and “Per Lora Oly Tunnel -100 = 100 cfs.” (alterations added). The

Operating Log at 2:00 p.m. on September 13 further states: “Per Lora Oly Tunnel -100 =

0 [cfs].” (alteration added). At 3:04 p.m. on September 13, Ms. Baty sent an email to Mr.

Northrup, Mr. Beall, Mr. Bailey, Ms. Lamb, and thirteen others, which stated: “Once flows

have subsided, we will be conducting thorough evaluations for damage at each site.” 42

The Operating Log at 3:34 p.m. on September 13 states: “Per Howard Bailey Big T

[Thompson] River is at 2780 cfs.” (alteration added).

Mr. Miller issued a water order in the afternoon of September 13, 2013, which

appears to contain information for September 12 and 13, 2013, and did not contain

prospective information for September 14, 2013. The September 13 water order appears

to provide information regarding flow changes that occurred on September 12 noting

“[m]aitain a flow of 75 cfs” with respect to releases from the Olympus Dam into the Big

Thompson River, and “[m]aintain a flow of 550 cfs” with respect to Olympus Tunnel.

(alterations added). The information for September 12 in the September 12 water order,

however, appears to be identical to the information for September 11 and 12, 2013

included in the September 11 water order. Moreover, the September 13 water order

states:

The inflow to Lake Estes has started to recede. Our current plan is to

continue reducing the releases from Olympus Dam as the inflow recedes.

The Estes Powerplant will have 260 acre-feet of water scheduled for power

generation on Friday [September 13]. Meanwhile, Flatiron units #1 and #2

will have 520 acre-feet available.

(alteration added). The September 13 water order, in its “summary of flow changes,”

further states:

42Mr. Northrup testified at trial that he conducted the evaluation with respect to Olympus

Dam.

46

Friday, 0100 hrs Stop Flatiron Unit #3 Pumping to Carter Lake.

Friday, 0100 hrs Adjust the Olympus dam release to the Big T

[Thompson] river from 5280 cfs to 5060 cfs.

Friday, 0200 hrs Adjust the Olympus Dam release to the Big T

river from 5060 cfs to 4574 cfs.

Friday, 0300 hrs Adjust the Olympus Dam release to the Big T

river from 4574 cfs to 4425 cfs.

Friday, 0400 hrs Adjust the Olympus Dam release to the Big T

river from 4425 cfs to __ [sic] cfs.

(alterations added). The September 13 water order further details flows for entirety of

September 13, including the notations “[n]o flow” for the Big Thompson Powerplant and

“[n]o generation” for the Pole Hill Powerplant, and the instruction to “[m]aintain a flow of

200 cfs” through the Olympus Tunnel. (alterations added).

The Operating Log at 5:48 p.m. on September 13, 2013, states: “Per Lora Oly gts

[sic] -6” [inches] = 21” ea.” (alterations added). The Operating Log at 8:00 p.m. on

September 13 further states: “Per Lora – if Lake Estes elevation reaches 7469.7’ [feet] –

call Estes (Oly) and lower all gates #1, #2, #4, #5 -.25’ (current elev. 7469.78’).” (alteration

added). The Operating Log at 8:53 p.m. on September 13 additionally states: “Oly Dam

gates #1, #2, #4, #5 -.25’ [feet] verbal per Miller.” (alteration added). Seven minutes later,

at 9:00 p.m. on September 13, the Operating Log further states: “Per L [Lora], Miller Oly

Dam Rad [Radial] Gates #1, #2, #4, #5 @ 18” [inches] EA (-3” = .25’ [feet]).” (alterations

added). The Operating Log at 11:10 p.m. on September 13 states: “Per Tim Miller – Oly

Dam Rad [Radial] Gates #1, #2, #4, #5 +3” [inches] ea.” (alterations added). Five minutes

later, at 11:15 p.m., the Operating Log further states: “Per L [Lora], Miller – Oly Dam Rad

Gates #1, #2, #4, #5 to 21” = +3” ea.” (alteration added).

According to the parties’ joint stipulations, for an approximately 24-hour period

from shortly before 12:00 a.m. on September 12, to shortly before 12:00 a.m. on

September 13, 2013 the water coming into Lake Estes, including inflows, runoff, and

rainfall, exceeded the water being released through the spillway gates of Olympus Dam,

and as a result, the water elevation in the Lake Estes reservoir rose to 7,473.89 feet by

11:30 p.m. on September 12, the highest elevation which the reservoir would reach during

the 2013 storm. The parties stipulated that at 11:30 a.m. on September 12, inflow into

Lake Estes reached 3,903 cfs, while releases through the spillway gates amounted to

2,128 cfs, a difference of 1,775 cfs, the largest disparity between Lake Estes inflows and

Olympus Dam releases documented during the September 2013 storm. Mr. Miller testified

that he understood during the events of the September 2013 flood that water released

from Olympus Dam would take approximately three to four hours to reach the mouth of

the Big Thompson River Canyon downstream.

While the Bureau of Reclamation’s elevation gauge for the water in Lake Estes

remained operational throughout the duration of the storm, the gauges relied on by the

47

Bureau to measure flow into Lake Estes and releases from Olympus Dam “washed out

or became unreliable due to the intensity of the flow.” As a result, Bureau employees

calculated inflows and releases according to “a mass-balance equation based upon the

elevation level of Lake Estes and the opening of Olympus Dam’s spillway gates.” 43

Bureau employees did not constantly measure the spillway gate openings over the course

of the storm, but the “water schedulers initially calculated certain inflows and releases

based on the dam operators’ estimations of gate openings,” with such estimates being

revised as measurements of the spillway gate openings were made. As a result, “the on-

duty water scheduler initially believed, and the Bureau then adopted and reported, that

peak release from Olympus Dam was a flow greater than 6,000cfs.” At the time of the

September 2013 storm, according to the Bureau’s Standard Operating Procedures and

Emergency Action Plan, and the parties’ joint stipulations, the Bureau understood that at

a flow of 6,000 cfs, water would inundate structures in the Big Thompson River Canyon.

When the spillway gate measurements for peak release were reported, estimates for peak

release from Olympus Dam were revised to approximately 5,300 cfs.

The parties stipulated to four sources of water which contributed to the flow at the

plaintiffs’ properties:

(1) releases from Olympus Dam; (2) rainfall and runoff from the area

between the dam and the confluence of the Big Thompson and North Fork

Big Thompson Rivers at Drake; (3) the North Fork Big Thompson River; and

(4) rainfall and runoff from the area between the confluence at Drake and

Plaintiffs’ properties.

According to the parties’ joint stipulations, at the Orr property, peak flow of the Big

Thompson River reached between 14,800 and 15,011 cfs, while peak flow by the Carman

property reached between 14,800 and 15,080 cfs. The parties also stipulated that more

than 9,400 cfs of the peak flow at plaintiffs’ properties are attributable to sources other

than Olympus Dam releases.

According to the parties’ joint stipulations and the testimony of Mr. Carman, at

approximately 11:00 a.m. on September 12, 2013, water from the Big Thompson River

entered the basement of the Carmans’ home. The Carmans’ properties lost power “a little

after lunch,” and between approximately 2:00 p.m. and 3:00 p.m., the Carmans lost phone

service as well. At approximately 2:00 p.m., a “HUMV vehicle” arrived at the Carmans’

properties, and Mr. Carman spoke with one of the men from the vehicle and was left with

the impression that the Carmans “were going to have high water,” but not that they

needed to evacuate. By between 2:00 p.m. and 3:00 p.m., water from the Big Thompson

River was flowing across the Carmans’ lawn between the river and their home. By the

evening of September 12, 2013, the Carmans’ footbridge over the Big Thompson River

had washed away. Mrs. Carman testified that by 6:00 p.m. on September 12, the water

43Mr. VanShaar testified that “on the evening of September 12, 2013, the estimated inflow

to Lake Estes would have been calculated through mass balance principles. Inflows,

whatever they are, all of them, minus outflows, that’s releases to the river and flows

through the Olympus Tunnel, equals the change in storage.”

48

in the Carmans’ basement had reached a depth of three to four feet. Mr. and Mrs. Carman

testified that in the late afternoon or early evening of September 12, the Carmans went

for a drive up the Big Thompson River Canyon as far as Drake and Waltonia, Colorado,

and according to the testimonies of Mr. and Mrs. Carman, they did not see water on the

road. Upon returning from this drive between approximately 6:30 p.m. and 7:00 p.m.,

according to Mr. Carman, the Carmans gathered a laptop and toiletries and relocated to

their neighbor’s house on higher ground across Highway 34 and did not see their property

again until the next morning. When the Carmans last saw the water before departing their

house, the water had risen to between a foot and a foot-and-a-half deep in the yard behind

their house and the Indian Village store.

Between approximately 11:00 p.m. and 11:30 p.m. on September 12, 2013, Ms.

Orr, who had been at her home for the entirety of the day of September 12, testified that

she could no longer see the level of the river because of the darkness at that time of night,

but the last time she had seen the river, “it wasn’t anywhere close to the house,” and

remained in the grassy yard. At this time, Ms. Orr testified that she heard “a roaring sound

of water coming down,” which was different from earlier in the day, when the river had

been quiet. At approximately 11:30 p.m. on September 12, the parties stipulated, and Ms.

Orr testified, that Ms. Orr observed “the Big Thompson River rapidly rise out of its banks

onto her property” and “overturn her picnic table, which had been set in concrete.” In

response, Ms. Orr evacuated her property to the house of two neighbors, the Swedlunds,

and did not see her property again until the morning of September 13.

Mrs. Carman testified that at approximately midnight or 1:00 a.m. on September

13, 2013, she heard the river “rumbling and things rolling around the rocks.” Mr. Carman

further testified that between approximately midnight and 2:00 a.m. on September 13, he

heard his backhoe, with its outriggers extended, dragging across concrete. Ms. Orr

testified that at approximately 2:00 a.m. on September 13, while Ms. Orr could not see

her house from the Swedlunds’ property, she could hear “crackling” as well as “things

coming down the river,” and she “could smell propane.” Ms. Orr testified that she could

hear “noises during the entire night because of the water, the rush of the water hitting the

boulders and things in the river that were bouncing against the boulders” as well as the

crackling. According to the parties’ joint stipulations, between approximately 3:00 a.m.

and 4:00 a.m. on September 13, Mr. Carman “heard ‘rocks rolling in the bottom of the

creek’” which he attributed to erosion caused by the flooding.

Ms. Orr testified that she left the Swedlunds’ house at approximately 5:30 a.m.,

September 13, 2013, and returned to her property, where she found, according to the

parties’ joint stipulations, “that the flood had eroded the banks of the Big Thompson River

including the real property under and adjacent to her house, which had been damaged.”44

44 Ms. Orr submitted a claim to the United States for the loss of her property by email on

September 7, 2015. In the email, Ms. Orr stated that the portion of the house which fell

into the river was lost at approximately 3:00 a.m. on September 13, 2013. At trial, Mr. Orr

testified that the 3:00 a.m. time was only an estimation, and that she does not know what

time the portion of the house collapsed.

49

At this time, the water had receded and the grassy lawn which previously fronted the river

had washed away, while the portion of Ms. Orr’s house nearest

This text is long and has been trimmed here. Open the source document for the complete record.