Saturday, September 27, 2003
Q. Why does the Upper Yampa Conservancy District oppose the city filing for water rights on the whole of the Yampa River? And, why would the district support the city and even help fund filing for water rights on five tributaries that flow into the Yampa?
A. The Yampa River is the only major river system in Colorado that is not overappropriated. The main stem of the Yampa River below the town of Yampa has never been administered by the office of the Division Engineer. The river produces, on average, 1.2 million acre feet of water each year, of which about 10 percent is consumed for all uses in the basin, and 90 percent flows to Utah.
We have a long history in this basin of water users trying to avoid having a call put on the river. If a call is put on the river's main stem, a fundamental change occurs in the administration of the river system in that the river system is then said to be "overappropriated." Proposals for new water rights, changes or exchanges of water rights become much more complicated and difficult to achieve when the system is deemed overappropriated.
A Recreational In-Channel Diversion (RICD), which the city is considering, would undoubtedly exceed 1,000 cubic feet per second of flow during the runoff, for kayaking, and would likely be for virtually all the available flow during the remainder of the summer season, for tubing. From a water engineering standpoint, a RICD that huge will take virtually all of the storable and divertable water produced in the Yampa River and its tributaries in a below-average year. The river and all of its tributaries will become overappropriated upstream from the city to the headwaters in the Flat Tops.
The effect of a RICD decreed to the city on the Yampa main stem would be to make the city the decision-maker regarding all future upstream water development on the Yampa River and its tributaries south of the city. Stagecoach, Oak Creek, Phippsburg, Yampa, and everywhere in between--indeed, all of south Routt County--will become second-class citizens regarding the ability to accomplish future water projects to provide for their own growth and their own uses. The city will simply have hogged all the marbles on the playground.
Some have said that a city RICD on the Yampa main stem is necessary to protect against trans-basin diversion of Yampa River water out of the basin. In my judgment, there is no substantial viable threat of transbasin diversion of Yampa River water upstream from the confluence of Walton Creek with the main stem, and to the extent any such plan might surface, the Routt County commissioners could veto and stop any such plan.
But there is a physical and legal possibility to export water from Walton and Fish creeks for use on the Front Range. The number of legal hurdles to such a scheme, which no one has publicly proposed, are tremendous, but the physical possibility exists. Someday, the Upper Yampa District may lose the rights on Walton and Fish creeks that it bought in the mid-1980s. Hence, the district suggested to the city that it look to those two tributaries, as well as Spring, Butcher Knife and Soda creeks, for the source of RICD water, in order to permanently block any transbasin diversion from those sources.
The real purpose of a RICD is for the city to control future water development upstream from the city. The Upper Yampa District represents all of Routt County (except for the Little Snake drainage), and its directors are troubled about the prospect of a RICD right that may injure South Routt.
Q. How far is the district willing to go in opposing the city if it does decide to file for water rights on the whole of the Yampa.
A. The directors of the Upper Yampa District have not discussed that. The decision cannot be made until the city makes its filing, and the district evaluates the application. The district has sufficient financial reserves to fund whatever level of opposition it might choose to make.
Q. Some City Council members fear the passing of Referendum A has the potential to negatively impact the city's filing for water rights. Do you think it does?
A. No. Referendum A, if passed, simply allows the Colorado Water Conservation Board to issue revenue bonds for water projects. The Water and Power Authority already can issue revenue bonds, and has an existing revenue bond loan portfolio of almost $1 billion. Water projects are built by project sponsors, usually governmental entities other than the state, that can generate revenue to support issuance of revenue bonds to finance the project.
Referendum A doesn't create any new revenue stream; it adds to the possible sources of financing for project sponsors. If passed, it will not make the prospects of a new water storage or diversion project on the Yampa River or its tributaries upstream from Steamboat more or less likely.
Referendum A will only apply to $5 million-plus projects, so smaller diversion or storage projects in South Routt wouldn't be able to use it for financing even if it passes.
Q. As the long-time attorney for the Mount Werner Water and Sanitation District, do you think the city and the district will ever reach an agreement on consolidation? How close are they in their negotiations?
A. I do not know if an agreement can be reached and then implemented. The legal complexities of a "consolidation" are huge. A home-rule city cannot legally "merge" into a special district. A special district cannot legally "consolidate" into a city.
It's a little bit like looking at a horse and a llama and saying, "Both are in the business of carrying material into the high country, why don't we just make them one animal?" You can kill the horse and move the saddle bags onto the llama, or vice versa. But if you can't kill either of them, it's a little hard to figure out how to "consolidate" them to carry a combined load into Gilpin Lake.
I began legal work on possible consolidation in 1983. It took more than 10 years for the elected representatives on both entities to focus in on a possible "road map" and the ultimate entity that might be the end result of a consolidation process. One of the steps was approval of a city charter amendment, which failed at the polls.
The process has moved backwards. There is currently no agreement on the possible outline of the end result, or a possible "road map" to get there.
Good, competent people from both entities are spending considerable time and effort to build mutual consensus from the ground up. Progress is being made. I remain hopeful. But it feels a lot like 1983 all over again.