Hearing set for city water request

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— An Aug. 1, 2005, date has been set for a hearing on the city's recreational water right request, allowing time for the Colorado Supreme Court to decide on a similiar case in Gunnison.

Those who opposed the city's filing for recreational water rights on the Yampa River asked that the District 6 Water Court hearing be postponed until after the state Supreme Court made a decision

District Judge Michael O'Hara's ruling was a compromise, setting the case to a specific date but leaving enough time for a decision to be made in the Gunnison case.

"We would have liked to have it in the May or June time frame, but August is certainly acceptable," city water attorney Glenn Porzak said.

O'Hara's ruling also allowed for a status conference to be held after the state Supreme Court decision, which would give the parties a chance to negotiate a deal and not go to trial.

In December, the District 4 Water Court granted the Upper Gunnison River Water Conservancy District's full recreational water right request for a maximum of 1,500 cubic feet per second and a minimum of 270 cfs in the Gunnison White Water Park.

The Colorado Water Conservation Board, which approved the application under the condition that the request be lowered to 250 cubic feet per second, appealed the decision.

Attorney Bob Weiss, who represents the Upper Yampa Water Conservancy District, Oak Creek and Yampa in opposing the Steamboat case, thinks the Gunnison case will give some very clear direction.

Weiss said the decision would determine if a recreational water right is constitutional and, if so, what is considered a reasonable amount.

A state Senate bill requires the state water board to make a recommendation to the court on all recreational water rights and limits the amount requested "to the minimum amount necessary for a reasonable recreational experience."

"My clients think the amount of water being requested is excessive and the uses that are being requested are outside the scope of what a (recreation in-channel diversion) can be granted for," Weiss said.

But Porzak said the city's case can be argued regardless of the Gunnison outcome. Unlike the Gunnison case, Porzak said, the state water board denied the city's application, leaving it up to the judge to decide what amount of water, if any, the city should have.

Before the Senate bill, the Gunnison case and the city's filing, the state Supreme Court granted the cities of Vail, Breckenridge and Golden their full requests for recreational water rights. But that decision was a 3-3 vote with one judge abstaining because of a conflict.

The Upper Yampa District, Oak Creek and Yampa were among six entities that filed a brief of amici curiae in the Gunnison case Monday, Weiss said. The brief states to the court that the issue is precedent-setting and of statewide concern and is asking the Supreme Court to overturn the District 4 Water Court ruling.

Other entities joining the brief were the Rio Grande Water Conservation District, the Southwestern Water Conservation District, the Denver Water Board, the city of Aurora, the Southeastern Colorado Water Conservancy District and the Colorado Farm Bureau.

Porzak said the city is expected to file a similar brief with a group that supports retaining the court's ruling in the Gunnison case.

On May 27, the state conservation board made a decision to recommend that the court deny the city's water right application, which asked 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 would benefit other recreational uses such as boating, tubing, rafting, floating and canoeing. The city applied for the recreational water right in December.

The city's application has a maximum request of 1,700 cubic feet per second in the first half of June and the minimum request of 120 cfs from July 15 to Oct. 31.

O'Hara set the case for a 10-day trial beginning Aug. 1, 2005, and said discovery could not start until Jan. 14.

-- To reach Christine Metz call 871-4229

or e-mail cmetz@steamboatpilot.com

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