Water battle continues

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With a trial date for a recreational water right application looming in about a month, the city of Steamboat Springs and the Colorado Water Conservation Board continue to refuse to settle outside of court.

This week, the Steamboat Springs City Council sent a letter to the water board stating that the board's most recent proposal did not "provide a productive basis for settlement."

In July, after settling with five local entities that had opposed the city's filing for a recreational water right, city officials appeared before water board members to ask them to settle.

A week later, the water board responded with an offer that reduced the city's requested water flow amounts even more and also asked the city to incorporate a trigger-flow provision.

City water attorney Glenn Porzak said the water board's offer was "not even in the ballpark." He noted that before the water board's offer, the city already had reduced its water-rights request by more than 40 percent to appease other entities that initially had opposed it.

"We made it really clear, we were not going to compromise any further on the flow rates. The city did all the compromising it was willing to do with the settlement," Porzak said.

Water board staff member Ted Kowalski said water board members continue to think that the city's request for a recreational water right is for more water than necessary.

The dispute centers on a recreational water right application the city filed in December 2003 for the C and D kayaking holes in the Yampa River in downtown Steamboat. Recreational water rights, when approved, ensure a minimum stream flow in a waterway for recreational uses such as kayaking, tubing and fishing.

The state water board and water court continue to struggle to define what constitutes the amount of water necessary for a "reasonable recreational experience," the phrase used in a state bill that stipulates how to determine whether a recreational water right should be granted.

Kowalski said the state water board's offer was designed to ensure that Steamboat was asking for only the minimum amount of stream flow needed for a reasonable recreational experience.

"We were offering a reasonable compromise that could have avoided litigation and addressed the board's concern and met its statutory mandate of protecting Colorado's water resources," Kowalski said.

Water board members had suggested that the city lower its request from 1,000 cubic feet per second of stream flow during the last two weeks of May and 1,400 cfs during the first two weeks of June to 650 cfs. The water board said the city could request as much as 1,000 cfs for eight days during that period for competitive water events.

In the last two weeks of July, the water board requested that the city drop its request from 100 to 95 cfs.

The water board's requests came after the city agreed to reduce its peak amounts in a June settlement with the Upper Yampa Water Conservancy District, the towns of Oak Creek and Yampa, Morrison Creek Water and Sanitation District and Routt County.

In that compromise, the city's peak requested amount, which is for the first half of June, was reduced from 1,700 cfs to 1,400. The lowest request, which was from July 15 to Oct. 31, dropped from 120 to 100 cfs during the last half of July and to 95 cfs during the first half of August. The city decided not to request any water for after Aug. 15.

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

The water board's settlement offer included an additional stipulation about when the city could make a call on the river. A call is made when water-right owners exercise their legal right to divert or use water from a river. The system operates on a first-in-time, first-in-right basis.

Known as the trigger-flow provision, the water board's stipulation prevents the city from making a call on the river if the available stream flow is 90 percent or less of what the city is requesting.

For instance, if the city's decreed water right was for 1,000 cfs for its kayaking course, and the available water in the river was less than 900 cfs, the city would not be able to call any of that water.

However, the city could make a second-tier water-right request for a recreational activity that requires less water. The city could make a call for the amount of water that meets that need, such as 100 cfs for tubing the river.

The intent of the stipulation, Kowalski said, was to force recreational water right applicants to apply for the absolute minimum amount of water needed.

"If 600 cfs is the minimal amount for an expert kayaking course, then what are you going to do with 500 cfs?" Kowalski said. "It is a question of proof."

The drop in the amount also allows other entities to use the water, Kowalski said. In the above example, 800 cfs would be freed for other uses.

In its letter to the water board, the city states that the trigger-flow provision was "a concept foreign to, and simply has no basis under, Colorado law."

"What is the point of getting water rights if you can't call for them on a dry year," Porzak said.

The city also noted that the water board had filed a motion against the city's settlement with the other local entities. City officials think that contradicts the water board's settlement offer.

In August, the water board filed a motion for determination of question of law. In that motion, the water board took issue with the city's agreement to reduce its water-rights request to as much as 10 cfs for any of the opposing entities.

The water board wasn't sure whether the city had a responsibility to maintain the full requested water right -- if it was the minimum amount needed -- and to lower it would require a vote of the people.

It also wasn't sure whether the provision meant the city's initial water-rights request was not at the absolute minimum and whether it was willing to reduce the amounts by another 10 cfs in the future.

Kowalski said the board would like further clarification on the issue before going to trial.

Porzak said the water board's motion, along with several all-day depositions, is another way for the state board to drive up legal costs before going to trial.

"In my 32 years in the profession, it is the most bizarre motion filed by anybody," Porzak said.

Kowalski denied that the water board was trying to drive up legal costs and noted that the board gave the city a chance to settle before heading to court.

"If we go to trial, the city may not do as well as they might do under our compromise. We are going to trial because the city discarded our offer. We put forth a reasonable offer. It was rejected," Kowalski said.

The city's seven-day trial in district water court is scheduled to begin Oct. 17.

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

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