The cost of water rights

Council agrees to research cost of hiring water lawyer

The City Council unanimously agreed to look at the cost of hiring a lawyer in its quest to file water rights on a portion of the Yampa River.

The council disagreed on whether it was too early to hire a lawyer and whether the city should continue gathering data and talking to surrounding communities.

The council received a letter Tuesday from the Routt County commissioners, stating the commissioners did not agree with city staff's recommendation to move forward with obtaining new water rights before any substantial discussion with the county and other users upstream.

"For Routt County as a whole, we have concerns about the effects in-stream recreational water rights would have on the ability of the various agriculture, municipal, commercial and industrial users to meet future water demands," states the letter signed by Chairman Doug Monger.

The letter also asks that the city collect more data and evaluate the regional impacts on the application before it moves forward with filing for recreational water rights. The commissioners suggested the city hold discussions with the Upper Yampa Water Conservancy District, other interested water users, the upstream communities and the commissioners.

Since May, the city has looked at filing for recreational water rights, which would preserve the level of flows of the Yampa River coming through the city.

Councilman Paul Strong asked the council to move forward with a proposal for a lawyer to take the city through the water rights filing process. The request is intended to find out how much water attorney Glen Porzak -- who fought for recreational water rights in Golden, Vail and Breckenridge -- would charge. Strong also said the request for a proposal, or RFP, would be open to other lawyers.

Most council members want to file before 2004. Strong said he has concerns about time, as well, and said the potential $100,000 or more the city would spend on water rights will seem small and insignificant 20 years from now, compared to the benefit of water rights.

Councilman Loui Antonucci also agreed that council should look into hiring a lawyer, especially if the city is going out to other communities, he said.

"If we are going to collect data and talk to other communities, we need to have someone out there who can explain what we are looking for. Before we go ahead, I want to hire someone," Antonucci said.

Some council members agreed to the RFP but balked at the idea of hiring a lawyer now.

Parks, Open Space and Recreational Services Director Chris Wilson said the city does not need to hire a special water attorney yet and said it has water attorneys already under contract.

Councilman Bud Romberg urged the council to get more information on which water rights the city should ask for before hiring a lawyer.

"I think there are other things that need to be done," Romberg said.

Staff was directed to come back with cost estimates by next Tuesday's council meeting. Councilman Steve Ivancie said that will be the time to hire a lawyer.

"I want to be prepared to go forward and not dillydally," Ivancie said.

Before filing a water right, the council must first decide whether it wants a minimum in-stream flow or a recreational in-channel diversion; whether the water right should be limited on five tributaries which enter the Yampa River in or near the city limits; or whether it should be a water right on the body of the Yampa River.

Staff requested direction in the timing and location of the water right filing. Wilson said the city has worked with the Colorado Water Conservation Board on its application for water rights.

One of the first steps after filing a water right is appearing before the water board, which will then pass on its recommendation to the water courts.

Wilson said the water board would support a minimum in-stream flow right, where the right would be maintained by the state, and the water board and Division of Wildlife would determine how much water should be adjudicated to ensure that the river's health and wildlife environment is kept intact.

The water board also could support a recreational in-stream channel diversion, which the city would own and be responsible for designating the amount of flow requested. But, Wilson said that claim would have to meet the board's definition of an amount that would be "a reasonable recreational experience."

Kent Ventress, who works with Blue Sky West and is on the committee working on the Yampa River Management Plan, said a minimum in-stream flow right would not be enough to cover the water features in the Yampa River that the city has built over the past few years. He also said data shows that in order to maintain that flow needed for the features, the city also would need to file on a portion of the body of the Yampa, not just the tributaries.

In other business:

n The council unanimously agreed to form a commission to look at the possibility of using growth caps. Forming the commission will be one of the recommended action items in the Steamboat Springs Community Area Plan Update. The council also said elected officials should appoint the commission and it should represent a broad spectrum of opinions.

n Attorney Tony Lettunich announced that a federal magistrate had recommended that a lawsuit by Kay and David Sieverding against the city be dismissed. The ruling also recommended dismissing claims made against former City Council President Kevin Bennett, several Steamboat law firms, county officials, The Steamboat Pilot & Today, the city's insurance company, the Bar Association, Routt County Judge James Garrecht and employees of the District Attorney's Office. The ruling, filed Tuesday, recommended that the plaintiffs be ordered to pay attorney fees and costs.

"This chain of lawsuits and voluminous pleadings needs to have a wooden stake driven through its heart," Judge O. Edward Schlatter wrote.

n The council unanimously passed the second reading of an ordinance that would make it legal to openly carry firearms within the city limits, unless otherwise posted. The change in the code would make it legal again to openly carry a firearm on sidewalks, streets and private property within the city. The council had to change its code in order to comply with the new state gun law.

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