Rebuttal Statement of Town of Silverthorne

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• COLORADO DEPARTMENT OF NATURAL RESOURCES COLORADO WATER CONSERVATION BOARD REBUTTAL STATEMENT OF THE TOWN OF SILVERTHORNE CONCERNING THE APPLICATION FOR WATER RIGHTS FOR A RECREATIONAL 1N- CHANNEL DIVERSION OF THE TOWN OF SILVERTHORNE IN SUMMIT COUNTY Pursuant to Rule 13(d) of the Colorado Water Conservation Board's Recreational In- Channel Diversion ("RICD") Rules and the Prehearing Order dated June, 28, 2005, Silverthorne submits the following Rebuttal Statement. REBUTTAL STATEMENT REGARDING FIVE STATUTORY CRITERIA A. Compact impairment. Some of the Objectors' Prehearing Statements argue that the RICDs will impair Colorado's compact entitlement because they may limit the opportunity for future exchanges. Silverthorne believes that Objectors have overstated the impact of the RICD on exchange • potential, but this issue is primarily a question of maximum utilization, and it is addressed further in Section E. below. The fact is that there are approximately 220 river miles between the RICD and the state line where the major population in the Colorado basin resides. A substantial portion of any remaining compact entitlement certainly can, and most likely will, be put to beneficial use in this downstream area. There are also numerous senior conditional water rights located above and below the RICD that will further use any remaining compact entitlement. Moreover, Silverthorne has effectively agreed, by the trigger flow provision of paragraph 8.3 of the proposed decree (attached hereto as Exhibit O, that Silverthorne's RICD call will only be placed during two narrow bands (between 90 and 100 cfs during the summer daylight hours; and between 540 and 600 cfs during the daylight hours of 3 summer holidays). During all other times of the year and flow regimens outside of those bands there would be no RICD call from Silverthorne. Dr. Eisel and Mr. Richards have analyzed the available exchange capacity outside of these flow bands and have determined, as indicate on Exhibit S, that approximately 110,589 acre feet would be available for future exchanges or other uses that could operate in an average year without any injury to Silverthorne's RICD. Thus, Silverthorne firmly believes that the RICD will not cause any undue impairment of Colorado's ability to fully develop its Colorado River Compact entitlement either by direct use or hy exchange. Staff has asserted that the RICD claim will not impinge on Colorado's ability to develop and consumptively use its compact entitlement, except during September. Staff has suggested • that this issue may be resolved by a"dry-year condition." Later in its Prehearing Statement, Staff suggested that this issue may alternatively be addressed by the "trigger flow" concept discussed