Steamboat Pilot & Today

The Colorado Water Conservation Board continues to oppose the city's request for a recreational water right, despite a settlement agreement reached between the city and former opponents in the Yampa River Basin.

A conservation board representative ex----plained its position while standing a few hundred feet from the kayaking holes that are at the center of the controversy. The site was among the stops made by about 45 people with the Colorado Foundation for Water Education who toured the Yampa and White river basins this week.

On the front lawn of the Steamboat Springs Community Center, the group listened to Steamboat Springs City Att--orney Tony Lettunich, CWCB staff member Ted Kowalski, state Sen. Jack Taylor and Upper Yampa Water Conservancy District Manager John Fetcher debate the merits of recreational water rights.

Kowalski told the crowd that the CWCB appreciates the work the city has done to resolve the conflicts the recreational water right spurred with other Yampa River water users.

"The problem is, the board doesn't just represent the Yampa River Basin. They represent the whole state," Kowalski said.

The state water board and Water Court are struggling to define what constitutes the amount of water that would provide a "reasonable recreational experience" -- the yardstick a state bill stipulates must be used to determine whether to grant a recreational water right.

"It is our job to determine what that is," Kowalski said.

In December 2003, the city filed for a recreational in-channel diversion on the C and D kayaking holes on the Yampa River. RICDs are water rights that ensure a minimum stream flow in a waterway for recreational uses, such as kayaking, rafting or fishing.

The CWCB has doubts about the city's request. The city's first maximum request was for 1,700 cubic feet per second during the first two weeks of June. That request later was dropped to 1,400 cfs. Kowalski asked why it couldn't be lowered to 1,000 cfs.

What the city requested in its water-rights application went far beyond the amount it noted in an early memo about the minimum flows needed for certain water activities, Kowalski said. He handed out a copy of that chart during Friday's meeting.

"What is the minimum flow? We are really trying to grapple with that. It is difficult. We are grappling with it, and the courts are grappling with that and, ultimately, the Supreme Court will," Kowalski said.

Kowalski called for the Colorado General Assembly to give the CWCB more guidance in determining what a minimum flow is for a reasonable recreation experience.

During Friday's talk, Let--tunich handed out a letter the Steamboat Springs City Council signed Tuesday night. The letter asks the CWCB to drop its opposition to the city's filing in light of the settlement.

"The only one hanging out is the CWCB. It is the old turn on the joke, 'Hello, we are from the state, and we are here to help you,'" Lettunich said.

In its letter, the city noted that the CWCB had asked for 10 depositions for city employees and experts, which it called "an enormous waste of taxpayer money when the actual water-users have consented to the reduced RICD."

At Tuesday's meeting, council members spoke harshly about the CWCB and their unwillingness to negotiate with the city or other entities that have filed for recreational water rights.

"What is the concern of the CWCB when all the other objectors have been satisfied? Where is the allegiance to local districts and municipalities? Why is the Colorado Water Conservation Board so determined to take a very aggressive position in courts, when it has really not proven to be successful," Councilman Ken Brenner said.

This month, the city reached a settlement with the Upper Yampa Water Conservancy District, the towns of Oak Creek and Yampa, the Morrison Creek Water and Sanitation District and Routt County.

The city agreed to decrease by 20 percent the amount of water it requested and to not use the RICD as a basis to oppose any future water-right filings or changes on the upper stretch of the Yampa River and some of its tributaries.

The city also agreed its recreational water right would be subordinate to any future request of as much as 10 cfs from any of the opposing entities.

On Wednesday, District 6 Water Court Judge Michael O'Hara approved the settlement. He also ordered the CWCB to review the city's request a second time, in light of the settlement.

Kowalski said the state water board would decide at its July meeting whether it will hold that hearing during its regularly scheduled meeting in Durango or whether it will hold a special meeting closer to Steamboat.