Thursday, May 27, 2004
The Colorado Water Conservation Board on Thursday recommended that the city of Steamboat Springs' request for recreational water rights on the Yampa River be denied.
In an 8-0 decision, water board officials said the city requested too much water but did not give exact numbers for what a more appropriate amount would be.
The board has until June 11 to make its recommendation to the District 6 Water Court, which will decide whether to grant the request. When the water court hearing occurs, the state water board can present its case for denying the application.
Board members pointed to a city memo that listed minimum flows for river activities, which were much lower than the volumes the city requested, and a video of kayakers enjoying water levels far below the maximum the city requested.
The debate during the two-day hearing centered largely on the minimum amount of water needed to provide the "reasonable recreational experience" defined by the state.
"I believe there is a legislative intent, at least with the (recreation in-channel diversion), that charges the board to do a balancing act to try to accommodate filings for recreation ... and at the same time, leave water for more traditional uses," board member Harold Miskel said.
The board did not entirely rule out the city's recreational water right and noted that if the city requested an appropriate minimum amount, it "would promote maximum utilization of Colorado's water resources."
Glenn Porzak, the city's water attorney, said the board's decision was better than the city expected.
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 would benefit other recreational uses such as boating, tubing, rafting, floating and canoeing.
The city's application has a maximum request for 1,700 cubic feet per second in the first half of June and a minimum request for 120 cfs from July 15 to Oct. 31.
Colorado Water Conservation Board staff members suggested that reasonable recreational experiences could be provided at 350 cfs. The water board policy has 350 cfs as the suggested maximum flow for recreational water rights.
Bob Weiss, representing the Upper Yampa Water Conservancy District and the towns of Oak Creek and Yampa, showed video footage of kayakers enjoying water levels at 450 cfs during Wednesday's hearing.
In October, before filing for water rights, the city produced a memo that lists minimum flows for river activities -- 50 cfs for fishing; 500 cfs for kayaking play waves; and 250 cfs for kayaking the slalom course.
The board's staff contended these numbers were the minimum that would meet a reasonable recreational experience.
But City Open Space Supervisor Mike Neumann said the uses would stop if flows fell below those minimum levels.
Porzak said the minimum levels could not provide a reasonable recreation experience.
"You can't get people to come the rest of the season if all they ski are bunny slopes," Porzak said. "That is effectively what staff is asking you to recommend."
Some board members suggested using the city's numbers as the maximum amounts, but others said they were not ready to set volumes, which could be established when the city goes to court.
"We will be in water court. That is where the appropriate flow numbers are going to be litigated with all the evidence," said Felicity Hannay, representing the Attorney General's Office as a nonvoting, ex-officio member. "It makes me feel better that this is not the last word on this."
In its finding and recommendations, the board also agreed that recreational water rights did not promote the maximum use of Colorado water because upstream junior water rights and future water storage could be "limited or precluded" by the city's filing.
The board also found that the applicant did not prove Charlie's Hole and the D holes divert, capture and control water without waste. The board also was concerned that the holes could increase flooding.
Under Senate Bill 216, which was passed in 2003, the Colorado Water Conservation Board is required to pass along a recommendation to the court for all recreational water rights. The first and only other case to be heard was the Gunnison Conservancy District's request for a maximum of 1,500 cfs and a minimum of 270 cfs for the Gunnison White Water Park.
The water board approved the application, but under the condition that it lower its request to 250 cfs. In December, the District 4 Water Court granted the district's full request.
The state water board is appealing that decision.
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