The city has filed a 20-page rebuttal to concerns raised by opponents to its recreational water right filing. The rebuttal, filed with the Colorado Water Conservation Board, is a precursor to the arguments to be heard during a Wednesday hearing on the city's water rights application.
Specifically, the rebuttal addresses concerns about the water right's potential to restrict future growth in the southern part of the county, the Colorado Water Board's cap of all recreational water rights to 350 cubic feet per second and whether the right would provide more than a "reasonable recreational experience."
Most of the rebuttal was targeted at the state water board's opposition. More than 20 statements of opposition have been filed against the city's water right application, but city water attorney Glenn Porzak said the state water board had the most extensive arguments, many of which were shared by other opponents.
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 the water right would benefit other recreational uses such as boating, tubing, rafting, floating and canoeing.
The city's application has a maximum request for 1,700 cfs in the first half of June and a minimum request for 120 cfs from July 15 to Oct. 31.
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.
The city had less then a month to organize the rebuttal, Porzak said, but many of the same arguments had been used in previous Water Court cases where judges granted the full amount of recreational water rights municipalities had requested.
"Some of these things, I have tried ad nauseam," Porzak said.
In its opposition, the Colorado Water Board has claimed the city would not promote the "maximum utilization" of water because the rights prevent future development. The state board also said the water rights exceed its requested 350-cfs cap for recreational water rights.
The city also is seeking water rights for recreational activities, such as tubing, that are not enhanced by the kayaking structures in question.
But, the rebuttal states that the city's application for water rights fits the definition of "maximum utilization" that the Colorado Supreme Court uses.
"It is a new, clean use of water on top of, and that works in tandem with, existing and future downstream diversions, generating revenue without polluting or consuming a single drop," the rebuttal reads.
The Upper Yampa Water Conservancy District and Routt County have argued that city's water rights would "impair the growth plan to provide water for increasing populations in the south portion of Routt County."
In its statement of opposition, the county said Oak Creek, Yampa and potentially Stagecoach have been designated as growth centers in the county and would need increasing amounts of dependable year-round water. If the municipalities file for water rights after the city's recreational water right is issued, they would be junior to the city and could be subject to calls made on the river by the city. The uncertainty of access to water from the river would mean those municipalities might not obtain the financing they need for water storage.
The concern is "completely irrelevant" to the city's case, Porzak said. In the city's rebuttal, Porzak points to Golden, Vail, Breckenridge and Gunnison cases in which the same argument was used and dismissed.
"Every water appropriation impacts future appropriation -- that is the priority system, but it is not a basis to recommend against the constitutional right to appropriate," the rebuttal reads.