Officials: Water rights ruling good for city

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A Colorado Supreme Court decision on Gunnison's application for recreational water rights bodes well for Steamboat Springs, city officials said.

On Monday, the state Supreme Court ruled that the Colorado Water Conservation Board erred in limiting Gunnison's recreational in-channel diversion application to 250 cubic feet per second.

The ruling helped clarify a 2002 state law, which will be applied to Steamboat Springs' RICD application when it comes before the water court in August.

City Attorney Tony Lettunich said the ruling vindicated the city's position that how the municipality wishes to use the water is crucial in granting a RICD.

"According to today's ruling, our intent must prevail. Anti-recreational interests can't force us to have a bunny slope when we want a black diamond kayak course," Lettunich said.

The state law stipulates that a recreational water right should be for the minimum amount necessary to provide a "reasonable recreational experience."

The court's decision solidified what a reasonable recreation was. The ruling said that at a minimum a reasonable recreation could include "merely floating a kayak" and at a maximum it could encompass "a world class expert course requiring nearly the entire flow of a given stream."

In determining the reasonableness of the RICD application, the courts would have to consider how much of the water in the river is taken up by previous water rights and the amount of water in the river basin itself.

City Water Attorney Glenn Porzak said the state water board overstepped its boundaries when it reviewed the Gunnison case.

"They didn't review the application that was filed in the Gunnison case. They reviewed the application they wanted to see. And that is exactly what they did in Steamboat," Porzak said.

The court's decision also stated that the water court erred in never defining what the minimum amount was for a reasonable recreational experience. The decision pointed out that the court did not have enough information from the state water board to make a proper analysis.

"I don't know what is going to be the basis to the opposition other than just trying to run up costs," Porzak said. "I don't think they have any grounds."

President of the Upper Yampa Water Conservancy District Tom Sharp, who has opposed the city's filing, said there are issues in the Steamboat case not addressed in the Gunnison decision. The type of use for the RICD and late season flows, which were concerns in the Steamboat case, were not covered in the Gunnison decision, he said.

The water court's decision for the Steamboat case still could be appealed by the applicants or opposition and taken to the Supreme Court, he said.

"The Gunnison case does not answer all of the questions that would arise," he said. "These questions will continue to arise in various RICD cases. Ultimately, it will be piecemealed by the Supreme Court, or the Legislature will step in and create definitions and provide guidance."

Sharp thinks that a recreational water rights bill that he helped write and is being sponsored by Sen. Jack Taylor, R-Steamboat Springs, will create definitions that will be helpful in interrupting the Legislature's intent.

"It is seeking to find definition where the Supreme Court is struggling to find definition," he said.

The state water board decision in the Gunnison case was somewhat different than the verdict it handed down to Steamboat. The Upper Gunnison River Water Conservancy District asked for a maximum of 1,500 cfs and a minimum of 270 cfs for a kayak course from May through September.

The state board recommended only 250 cfs. The Division 4 Water Court approved Gunnison's full request.

In December 2003, Steam-boat Springs applied for a maximum amount of 1,700 cfs in the first half of June and the minimum request for 120 cfs from July 15 to Oct. 31. The water would be used for two kayaking play holes on either side of 13th Street.

In May, the state water board denied the city's recreational water rights application, finding the amount of the city's request too high. But, the board did not give an exact amount for what would be more appropriate.

-- To reach Christine Metz call 871-4229 or e-mail cmetz@steamboatpilot.com

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