City files for recreational water rights

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Keeping its word, the city of Steamboat Springs filed for a recreational water right at the Routt County Courthouse last Friday to secure a 2003 priority.

On the same day of the filing, a decision from the Division 4 Water Court on a Gunnison County recreational water right case boded well for Steamboat, which is anticipating a lengthy and costly legal battle to come with the filing.

The city filed 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 is requesting a recreational in-channel diversion from April 15 to Oct. 31. The maximum flow requested is for 1,700 cubic feet per second in the first half of June, and the minimum requested is for 120 cfs from July 15 to Oct. 31.

The application also stipulates the claim would be limited from 6 a.m. to 9 p.m.

On Dec. 16, the City Council unanimously voted to file for recreational water rights before the end of the year. On Friday, city hired attorney Glenn Porzak filed for water rights, securing a 2003 priority.

The Upper Yampa Conservation Board and upstream municipalities had urged the council to wait to file and indicated opposition would follow if the city filed on the whole body of the Yampa River.

A decision issued from the Division 4 Water Court in Montrose gives Porzak confidence the city will prevail over the potential opposition.

Friday's decision in the Gunnison case ruled in favor of the applicant, the Upper Gunnison River Water Conservancy District, and discarded the recommendation made by the Colorado Water Conservation Board. The Colorado River Water Board opposed the application.

"It is a very significant and positive development for Steamboat Springs," Porzak said.

The Gunnison Conservancy District had requested a recreational in- channel diversion from May 1 to Sept. 30, with the maximum flow request for 1,500 cfs and the minimum for 270 cfs. The water right is intended for the Gunnison Whitewater Park, which would be used for kayaking, rafting and canoeing.

The Gunnison case was the first to be tried since the Colorado State Legislature passed Senate Bill 216 requiring the Colorado Water Conservation Board to make a recommendation and defined in-channel diversion as the "minimum in-stream flow for a reasonable recreational experience in or on the water."

The Colorado Water Conservation Board recommended the water right request be for just 250 cfs, much less than what the applicant had requested. The board said expert kayakers would be attracted to the whitewater park at that flow level.

District Judge J. Steven Patrick disagreed. In his decision, Patrick stated that 250 cfs of water at low water times would attract expert kayakers, but at high water time, the amount would not.

To not allow an applicant to determine the size and scope of a recreational in-channel diversion is unconstitutional, the judge stated. Under traditional water law, the only way to counterbalance that right is to not allow speculative use or waste.

During the hearing, no one proved the amount sought was enough to be speculative or wasteful, Patrick ruled.

"It was a really strong rebuttal," Porzak said of Patrick's decision.

The judge did note the amount of water requested by the Gunnison Conservancy District is estimated to be 41 percent of the available supply, which would reduce junior upstream development, exchanges and transmountain diversions.

Porzak admitted this likely would not be the final ruling on the case, which has a good chance of being heard in the Colorado Supreme Court.

Porzak tried a similar case last May in front of the Supreme Court, which granted the full requested recreational water rights for Vail, Breckenridge and Golden. Those cases where tried before Senate Bill 216 went into effect.

The next step in Steamboat's filing for a water right will be a review by the Division 6 Water Engineer Bob Plaska and water referee Dan Birch. Those findings will be given to District Court Water Judge Michael O'Hara.

The courts also will publish in the newspaper a list of all December water right applications in January, after which opposition is accepted.

A water court clerk said ideally a water right application is processed in six months but can take much longer if opposition occurs.

-- To reach Christine Metz call 871-4229

or e-mail cmetz@steamboatpilot.com

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