Wednesday, May 26, 2004
The many layers of the city's recreational water rights filing were peeled away Wednesday during an all-day hearing before the Colorado Water Conservation Board.
The most hotly debated issue was the minimum amount of water needed to provide the "reasonable recreational experience" defined by the state.
City engineers and staff and local kayakers testified that the amount requested by the city is necessary to attract world class and expert kayakers.
The state water board, which convened in the Steamboat Grand Resort Hotel and Conference Center, also heard public comment from ranchers and South Routt residents who fear that the city's request, if approved, would negatively affect their ability to irrigate and develop land.
On Dec. 26, the city filed for water rights on the Yampa River for two river structures -- the D Hole and Charlie's Hole. The two structures are kayaking play holes, but the city's application indicates that the water right also will benefit other recreational uses such as boating, tubing, rafting, floating and canoeing.
The city's application has a maximum request of 1,700 cfs in the first half of June and a minimum of 120 cfs from July 15 to Oct. 31.
On Wednesday, the city presented its case, followed by public comment and presentations by those who oppose the filing.
The staff of the Colorado Water Conservation Board will give its presentation at 8 a.m. today.
Under Colorado Senate Bill 216, the Water Conservation Board must make a recommendation on any recreational water right before the application goes to water court. In five other recreational water rights cases, the Water Conservation Board opposed the right. But the courts, including the state Supreme Court, deemed the recreational water right appropriate.
The city's water attorney, Glenn Porzak, spoke to the city's constitutional right to appropriate the water and the success of the five other municipalities.
Porzak and board member Harold Miskel, from the Arkansas River district, argued over how far the state water board could go in its recommendation.
State water board officials have said they would recommend recreational water rights that were 350 cfs or less and for flows that are 40 percent of the average available flow or less.
The city's water right request falls below the 40 percent mark, but in some time periods it goes much higher than the 350 cfs cap.
Porzak argued it was out of the state's purview and unconstitutional to place a "one size fits all" limit on the amount an applicant could request. With Senate Bill 216, the Legislature did not change the applicant's requirement to ask for the minimum amount of water that would "provide for a reasonable recreation experience," Porzak said. "But in the Golden case, the court did provide some definition to what reasonable should mean.
"The question is not whether the water claim is reasonable in the abstract or for other potential future uses, but (whether) the amount claimed is reasonable for the purpose for which Golden made the appropriation," Porzak said.
Miskel said he disagreed with Porzak's interpretation that "reasonable" entails just what the applicant's intended use is.
Attorney Bob Weiss, representing the Upper Yampa Water Conservancy District and the towns of Oak Creek and Yampa, said a reasonable experience could be had at the kayaking hole for much less than what the city requested.
The opponents also described the 120 cfs requested from July 15 to Oct. 30 as a recreational water right for tubing. The structures that would use the rights would not dramatically improve the quality of the tubing experience down the Yampa River, Weiss said.
Weiss pointed to a chart the city had created in October before filing for the recreational water right. The chart lists minimum flows for different river activities -- 50 cfs were needed for fishing, 500 cfs were needed for kayaking play waves, and 250 cfs were needed for kayaking the slalom course.
Mike Neumann, of the city's Parks, Recreation and Open Space Department, said the chart's minimum flows indicated at what volumes the activities could occur without harming the river's ecology or environment. The volumes would not provide a "reasonable recreational experience," Neumann said.
South Routt residents questioned the city's right to appropriate water for a use that would "benefit a few and hurt many."
John Fetcher, manager of the Upper Yampa water district, said the city's proposed water right could hinder municipalities further upstream from obtaining financing to increase its water storage.
"People are flocking to our valley whether we like it or not. Additional water storage is a must and will be required," Fetcher said. "(The recreational water right) filing, if granted, could very well prevent future conservation in the upper end of the Yampa Valley."
Porzak said prohibiting the city requested recreational water right because of the impact it could have on future uses goes against the intent of the state's appropriation system.
"The courts have told you four other times, you can't limit appropriations based on potential uses," Porzak told the board. "How many times does the court have to say that it is not relevant?"