City water right case is settled

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— The city of Steamboat Springs has reached a settlement with those opposing its recreational water right application.

The settlement appeases major entities in the Yampa Valley that have protested the city's filing for a recreational water right, leaving the Colorado Water Conservation Board as the last major opponent to the filing.

"Water law seems to have a process to it that doesn't always facilitate a real open discussion on the issue. The city has been waiting since 2003, when we filed, to have a discussion with our neighbors in the valley," City Councilman Ken Brenner said.

The basic tenet of the settlement would prevent the city from calling on past or future water rights on the Yampa River above Stagecoach Reservoir and limit the amount of water that could be called from the Morrison Creek tributary.

According to Colorado's first-in-time, first-in-right water system, owners of senior water rights can place a call on the river to prevent upstream users, who filed for water rights after them, from using that water. That water is then passed downstream for the senior water-right holder to use.

In December 2003, the city applied for a recreation water right with a maximum diversion of 1,700 cubic feet per second during June, the peak of kayaking season. The city's application is set to be heard in August in District 6 Water Court.

Entities involved in the recent settlement include the Upper Yampa Water Conservancy Board, the towns of Yampa and Oak Creek, the Morrison Creek Water and Sanitation District and Routt County. Each entity has to approve the settlement before it is finalized.

Upper Yampa District Man--ager John Fetcher said he was pleased with the settlement.

"I am an engineer for one thing, not an attorney. I like to see things accomplished. I like to see people get together. I don't have much use for lawyers who want to prolong the discussion when it is not necessary," he said.

The settlement is very similar to what the city proposed in a comprise it offered almost two years ago when the Upper Yampa Conservancy District first raised concerns about the city's filing. One of the sticking points in the negotiations was water coming from Morrison Creek, Upper Yampa District President Tom Sharp said.

The city sees Morrison Creek as a significant tributary that would help fulfill the city's recreational water right request.

The Upper Yampa District views Morrison Creek, which flows into the Yampa River just below the Stagecoach dam, as a possible source of water for future development in the Stagecoach area. Sharp said the district might want to use water from the creek to build a reservoir some day.

The settlement addressed both those concerns. The city agreed that if it were to call on the junior rights of Morrison Creek, it would do so at a reduced amount. The settlement also stipulated that Morrison Creek could be used to fill only 80 percent of the city's requested flow rates if a call was made.

Also, the settlement stated that, from July 15 to Aug. 1, the amount supplied by Morrison Creek would be lowered from 120 cubic feet per second to 100 cfs. From Aug. 1 to 15, the amount that could be called from Morrison Creek would be further lowered to 90 cfs. After Aug. 15, the city cannot make any calls on the creek.

The second part of the settlement states the city cannot make any calls on the Yampa River on past or future water rights above Stagecoach Reservoir. The same applied to the Oak Creek, Sharp said.

The city also could not object to a change in water right use, if, for instance, an agricultural water right was converted to a water right for development.

"The real issue was how we can be sure we have protected the ability for the south end (of the county) to develop in a logical fashion a hundred years from now," Sharp said.

Another obstacle to previous negotiations was the city's concern that the court would not accept a settlement that agrees to call water from certain tributaries and not others.

Sharp said the city and opposing parties would take the settlement before the water court. If the judge does not allow the city to stipulate where it can call water, there is a backup plan.

Sharp said the backup plan would have the city applying the 20 percent reduction in flow rates on the Morrison Creek to the entire Yampa River. In exchange, the city could call on junior rights in the upper part of the Yampa River.

Sharp said both sides want the first plan to work.

Part of the secondary plan stipulates the city would not oppose the Upper Yampa District changing its use of a Pleasant Valley Reservoir right to build a reservoir on the Morrison Creek.

In both plans, the parties acknowledged the city's claim on a water right as of Dec. 16, 2003, and that it only would be used for kayaking, canoeing, inner tubing, rafting and boating.

Another element in both plans would have the city dropping its opposition to the Upper Yampa District's two water rights filings on the Morrison Creek for 50 cubic feet per second.

Both plans also stipulate that the city could call water only from 8 a.m. to 8 p.m., with the exception of 10 special night events when water could be called as late as midnight.

Negotiations between the parties started little more than a week ago. Councilman Ken Brenner said the city's water attorney, Glenn Porzak, received a counter offer to a city offer made more than a year ago.

Representatives from the entities -- which included Brenner, Sharp, Porzak, Fetcher, District Attorney Bob Weiss and Council--woman Kathy Connell -- sat down Tuesday afternoon to hash out the details for the settlement.

A settlement was reached in two hours.

Sharp said with the city's application approaching its water court date, a decision had to be made about whether to settle out of court or go full-tilt into the trial. The city already has spent $200,000 on its application, and Sharp said the Upper Yampa District has spent half that much opposing it. The district was looking at another $50,000 to fight it in court, Sharp said.

The settlement also will have Fetcher testifying at the water court that the city's water right application and the settlement demonstrate the maximum use of water on the Yampa River.

"Our lawyers today, instead of doing dispositions for court, are crafting the final language in the settlement agreement," Ken Brenner said.

The settlement falls after the Supreme Court ruled on the Gunnison case, which the city thought boded well for its application, and the defeat of a bill in the state legislature that would have restricted recreational wa----ter rights severely.

The city and Upper Yampa Water District lobbied on opposite sides of the bill.

"The focus on Senate Bill 62 diverted everyone's attention for a considerable period of time," Porzak said. "(After the defeat) people were then able to sit down and come to a reasonable agreement."

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