When Xcel Energy cut power to Boulder County’s electric grid on April 6, it also knocked out power to the City of Boulder’s wastewater treatment plant. This triggered a scramble by city officials to keep sewage from spilling into Boulder Creek , a water source for downstream cities. The outage has sparked questions about Xcel’s contract with the city and potential violations.

In 2006, the City of Boulder entered an agreement with Xcel. Instead of installing backup generators at the city’s wastewater treatment plant on 75th Street, which was cost-prohibitive due to massive power demands, Boulder paid Xcel $140,000 to install a second substation to serve the plant. The city also agreed to pay $1,290 a month to maintain that substation. The intent, from the city’s perspective, was to ensure redundancy at the plant and avoid power cuts from disabling it.

As Joe Taddeucci, the city’s director of utilities, told Boulder Reporting Lab, this setup is an industry-accepted backup for such facilities.

On April 6, when Xcel Energy de-energized its power lines for the first time in Colorado to reduce wildfire risk amid high winds, it cut power to both substations. The city received no prior notice that its wastewater facility — which treats wastewater from Boulder homes, businesses and industries before releasing it into Boulder Creek — would lose power.

As city officials urged Xcel to restore electricity to the plant, a city spokesperson emailed other officials about possibly issuing a “no flush” order for residents, according to emails obtained by Boulder Reporting Lab . Quick thinking by city staff and an impromptu storage tank, fortuitously on hand due to a construction project, prevented raw sewage from spilling into Boulder Creek.

Boulder Reporting Lab obtained the original 2006 contract that established dual substations as a backup plan for the treatment plant. Much of the contract concerns the construction of the new substation and its costs. The agreement also specifies details about the power supply, including Xcel’s obligations to the city in an emergency.

The contract states that Xcel Energy reserves the right to remove either substation from service for emergencies at any time. It also allows Xcel Energy to “de-energize the preferred or alternate source for maintenance, planned repairs, or new construction.” However, it never states that it can de-energize both sources of electricity at the same time, which would leave the plant without power – the situation that occurred earlier this month.

In the liability section, the contract states that Xcel cannot be held liable for a power outage caused by events beyond its control, such as “forces of nature,” among others causes.

“Xcel Energy shall not be liable for failure or fault in delivery or total or partial interruption of service through the Dual Service Facilities caused by accidents, labor troubles, the forces of nature, the authority and order of government and other causes or contingencies of whatever nature beyond the reasonable control of Xcel Energy or which reasonably could not have been anticipated or avoided.

“Customer shall save and hold harmless Xcel Energy, its officers, employees and agents from any and all claims for injury to person or persons or damage to property as the result of or arising in any way pursuant to this Agreement; provided, however, that nothing herein contained shall be construed as relieving or releasing Xcel Energy from liability for injury or damage, resulting from its own willful or gross negligence or the willful or gross negligence of any of its officers, servants, agents or employees.”

Was the outage beyond Xcel’s “reasonable control?” The wind didn’t directly trigger the shutoff; Xcel did so to try to prevent a wildfire. So what is Xcel’s responsibility? Attorneys interviewed for this story said the contract is too ambiguous to provide a clear answer and could be interpreted in different ways in court.

The city could theoretically argue that the purpose of having dual substations was to prevent such outages. Although the wind was a force of nature, Xcel’s decision to cut power might be seen as a breach of the agreement, for which the city paid thousands. Yet Xcel might contend that the shutoff was a reasonable response to prevent greater damage.

“It’s not very detailed,” Katie Goodrich, an insurance attorney with MoGo LLC in Denver, said. “An agreement between a city and a power provider for something this complex, I’d expect to see more specifications.”

The city was reluctant to discuss the contract, indicating that a legal fight seems unlikely. “We’re not inclined to engage in a public discussion of a contract or agreement interpretation that may or may not result in some type of dispute,” Taddeucci told Boulder Reporting Lab.

This situation highlights how climate change has disrupted Boulder’s energy infrastructure, emergency services and preparedness.

“We certainly didn’t have the impacts of climate change in 2006 that we have today,” said Michelle Aguayo, an Xcel spokesperson, to questions about reconsidering the contract language nearly 20 years later.

Goodrich stressed the need for renegotiation. “They need to come back to the negotiating table and talk about this contract in light of current circumstances,” she said. “In this new climate that we’re in, from Xcel’s standpoint, they’re damned if they do, damned if they don’t. If I were them, I’d be wanting to come back to the drawing board to separate out responsibilities and figure out how outages should be handled.”

At a Boulder City Council meeting, Xcel Energy’s Colorado president, Robert Kenney, was questioned about the outage. Councilmember Tara Winer challenged why the city needed to alert Xcel about potential sewage risks when Xcel installed the extra substation: “Why should the city have to be the one that has to tell you that we’re about to have raw sewage go into Boulder Creek?”

Kenney acknowledged the need for better communication. “We’ve conceded we have opportunities to improve our communications both with our customers and with critical facilities,” he said.

In a statement provided to Boulder Reporting Lab, Aguayo of Xcel said that protecting the safety of customers and communities is a top priority, and “we firmly believe our actions contributed to preventing wildfire during the most recent extreme wind event.”

“When we learned the plant might not be able to withstand a long duration outage, we worked with the plant on an alternative solution,” Aguayo said. “That included both Xcel Energy crews and the local fire department patrolling the line while it was energized for the duration of the outage event to mitigate wildfire risk.”

Xcel said it worked closely with the Boulder County Emergency Operations Center leading up to the outage. Mike Chard, director of the city and county’s Office of Disaster Management, noted limited pre-outage communication.

“Leading up to the power shutdown, we did not know the time of the shutdown until hours before it happened,” Chard told Boulder Reporting Lab. “We also did not know where the shut off would cause impacts due to difficulty getting specific outage area maps. We did have a link to Xcel through our EOC [Emergency Operations Center]. And once it was reported by staff that we had a problem we were able to work with Xcel leadership to restore power to the wastewater treatment plant.”

Xcel has said it would consider preemptive power outages in Colorado again to try to prevent wildfires. According to Goodrich, the attorney, a repeat of the April 6 incident could strengthen a legal case for negligence. “At that point, I think it could rise to willful or negligent behavior.”

Goodrich also referenced Colorado’s “implied duty of good faith and fair dealing” statute in contracts, which suggests that omissions should be resolved through actions that align with the contract’s spirit and benefit both parties.

“I would see the ‘duty of good faith’ kicking in with respect to providing notice to the city of exactly what areas are going to be without power,” she said. “Xcel should be acting in good faith in responding to the city’s requests for information.”

According to Aguayo, Xcel is already working with community partners and the state Public Utilities Commission “as we all learn to respond to rapidly evolving, climate-driven weather events that threaten public safety.”