When the city of Steamboat Springs goes before the Colorado Water Conservation Board on May 26, it will have both the comfort of history and the threat of the unknown.
The city has the security of five other recreational water rights cases in Colorado in which judges ignored the board's protests and granted municipalities the full water amount requested.
The city also will have the uncertainty of having a bigger fight on its hands than any of those other municipalities, who were able to settle the oppositions' concerns -- with the exception of the water board -- before heading to court.
Along with the state water board, the city will be up against the Upper Yampa Water Conservation Board, which already has said obtaining a recreational water right will be a bumpy and expensive road for the city.
"We have certainly gone to the objectors to see if they were interested in settlement," City water attorney Glenn Porzak said. "It would be fair to say the opposers aren't interested in discussing
any serious settlement."
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.
On May 26 at the Steamboat Grand and Conference Center, the state water board will hear the city's case for those rights, followed by the opposition's arguments. Twice, from noon to 1 p.m. and from 5 to 6 p.m., the hearing will be opened for public comment.
With the state board already listed as an opponent with a clear stance that it will only support a recreational water right of 350 cubic feet per second or less, its decision is not expected to be a supportive one.
"CWCB has very publicly said they do not like in-channel diversions," city attorney Tony Lettunich said.
But city officials also think the board's recommendation will have little weight in the final decision.
Porzak worked on the Golden, Vail, Breckenridge and Gunnison cases, in all of which the state water board argued that much less water be given than requested, and in all of which the judges ruled to allocate the entire amount. The Golden, Vail and Breckenridge cases did not involve a state water board hearing, but recent state legislation requires the state water board make a recommendation to the Water Court on all recreational water rights filed.
"All the board does is make a recommendation, which the judge is free to ignore or accept," Porzak said.
The Colorado Water Conservation Board is among the more than 20 opponents to the city's recreational water rights filing. The list also includes a joint defense counsel led by the Upper Yampa Water Conservation District, but also representing Routt County, the towns of Yampa and Oak Creek and three metro districts.
Those opposers have all filed with the courts listing reasons why the city's recreational water right should not be supported.
County Commissioner Doug Monger, who also sits on the Upper Yampa board, said he finds fault with the amount of water the city requested and its claim that half of its summer tourism dollars come from the river.
"To be blunt about it, that is hogwash," Monger said.
However, a response the city plans to file Wednesday shows the numbers the opposition used to disqualify the city's need for water are "incredible mathematical errors," Porzak said.
The city's application asks for a maximum 1,700 cfs in the first half of June and a minimum 120 cfs from July 15 to Oct. 31.
Recreational water rights would preserve in-stream water flows in the Yampa as it goes through downtown Steamboat, but it would not increase the amount of water already coming through the city.
Supporters of recreational water rights say it is a way to sustain river activities for fly fishing, tubing and kayaking, even when future development farther up the river calls for more water.
Municipalities and landowners upstream fear the city's requested recreational water right would place an immediate call on the river, limit any future growth and could cost thousands of dollars in legal fees.
"I am not specifically opposed to the (recreational water right), we just think it needs to be a reasonable quantity, and we don't need to be tying up water for nonconsumptive uses," Monger said. "We want to make sure we have availability of water for the future population growth of the south valley."
When the City Council voted to file for a recreational water right in December, its president, Paul Strong, vowed the city would work with the communities that oppose it.
After Tuesday night's executive session, Strong said the city had tried to do so but the Upper Yampa district and others in the joint defense counsel were unwilling to make an offer the city could accept.
Councilman Ken Brenner said the Upper Yampa district was willing to accept the city's filing for a recreational water right if it limited its claim to eight tributaries: Service Creek, Green Creek, Harrison Creek, Walton Creek, Fish Creek, Spring Creek, Soda Creek and Butcher Knife.
Those tributaries all flow into the river after it passes through the towns of Yampa and Oak Creek and the Stagecoach Reservoir.
It was a proposal the city had heard and turned down before it decided to file for the water right. It was unacceptable to the city, Brenner said, because the city might not legally be able to pull water from tributaries.
The city would have been willing to follow the example of Golden, which worked out a settlement and set aside water for Idaho Springs to accommodate the towns' future growth, Brenner said. That kind of conversation could have been arranged with Oak Creek and Yampa.
"It is surprising we were unable to have those conversations," Brenner said.
As president of the Upper Yampa district, Tom Sharp has been one of the loudest objectors to the city's water filing. Sharp also has been appointed recently to serve on the Colorado Water Conservation Board. The city has objected to his involvement as a board member and as an opponent for the Upper Yampa district.
In a letter written to the Colorado Water Conservation Board last week, Sharp noted he would wait until July to be sworn in as a member to the board and will not attend the May hearing.
"I do not, and cannot, compromise the objection of the Upper Yampa Water Conservancy District to the city's RICD application," the letter states.
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