Judge: City to have water right
October 28, 2005
The city of Steamboat Springs will soon have a recreational water right.
After hearing seven days of testimony from the city and the Colorado Water Conservation Board, Judge Michael O’Hara ruled Friday in favor of the city in District Water Court.
In December 2003, city officials filed for a recreational water right on kayaking holes C and D of the Yampa River. A recreational water right, if senior to certain other rights on the river, can help the city try to ensure a minimum stream flow for recreational activities such as kayaking. The rights also are called recreational in-channel diversions, or RICDs.
To obtain a recreational water right, the city had to meet certain requirements. Five of those requirements came under the purview of the state water board. The city met three of the requirements before the trial started.
But the city’s attorneys still had to prove that certain recreational activities occur in kayaking holes C and D, a requirement called appropriate reach. The city also had to show that the right supported maximum use of Colorado’s water as a resource.
The ruling came after attorneys from both sides presented their closing arguments.
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In the city’s argument, attorney Glenn Porzak reviewed the testimony of the city’s witnesses. Several of those witnesses described the city’s process in determining the minimum flow rates for a reasonable recreation experience — a requirement by law to obtain a water right.
“You can see that they did claim the minimum flow rates for the minimum number of days,” Porzak said.
Porzak also said kayaking holes C and D, which are also called the boating park, are in the only location possible. The city owns both banks, he said.
“It is not only the appropriate stream reach, it’s the only stream reach,” he said.
Also, he said, the right meets the requirement of maximum use because it upholds valuable, beneficial uses of the waterway. It also would not disturb other rights or users upstream or downstream, he said.
In the state’s closing argument, attorney Paul Benington said that the boating park could have been built better.
“If the city truly wants a world-class water facility, it should not settle on bargain-basement design,” Benington said.
He said that officials could have built the boating park in a way that would have required lower flows and provide a better recreational experience.
“Steamboat has time to design and construct a truly world-class facility that city leaders say they want,” Benington said.
City officials have said that they want the boating park features to be considered world-class facilities.
Benington also said the city should be required to provide drafts of the structures so workers can rebuild them if they deteriorate.
O’Hara said he would not deny the city’s application on the grounds that it did not have documentation of the structures.
“Frankly I don’t believe that to be a fatal flaw,” he said.
Before he made his ruling, O’Hara, who said he is one of the state’s newer water judges, described the case’s difficulty.
“The scope of the case, in some ways, was rather daunting,” he said.
In the end, O’Hara said, he determined that the city’s evidence overcame the state’s findings. He also said the city met the requirements of appropriate reach and maximum use.
O’Hara ruled in favor of the city on one condition: that city officials provide state engineers with replications of the boating structures.
Porzak said attorneys for the city were pleased with the ruling, and that they did not intend to appeal the condition.
An official from the state board could not be reached Friday. State officials can appeal O’Hara’s ruling.