Rebuttal Statement of Town of Silverthorne

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• finding. The impact of this backwater will be to lessen the influence of river channel shape, roughness, irregularities, etc. on the 100-year water surface profile. C. Access for recreational use. Only the CWCB Staff has raised the access adequacy issue, stating that Silverthorne must provide documentation of adequate access. (Staff Prehearing Statement at 3.) As indicated on the Plat Map for Riverview Subdivision, Filing No. 1 attached hereto as Exhibit P, Silverthorne is the owner the parcel delineated as Tract C which comprises the bed of the Blue River from the Highway 9 Bridge to I-70, except for a portion of the river bed, delineated as Tract D that is owned by the Buffalo Mountain Metropolitan District. As explained in the attached Rebuttal Testimony, Silverthorne is currently in active negotiations with that District for Silverthorne's ownership of Tract D. However, even without the ownership of Tract D, the Blue River Whitewater Course can be constructed entirely on Tract C which is currently owned by Silverthorne. Also, as indicated on Exhibit P, there is an existing easement for pedestrian access all along the east bank of the Blue River along the Course. To the extent that additional rights of access are needed, Silverthorne is a municipality of the State of Colorado and, as such, is authorized by law to acquire such rights by consent or other lawful means, including by eminent domain. D. Instream flow rights. • The Staff has indicated that Silverthorne's RICD application will not injure the CWCB's instream flow rights. Staff Prehearing Statement at 3. Therefore, this should not be an issue at the heanng. E. Maximum utilization. In its Prehearing Statement, Denver argued that the RICD claims will not promote the doctrine of maximum utilization because it may impinge on Denver's ability to make future undecreed appropriations of Blue River water. There is no legal basis in Colorado to limit a present beneficial use of water to conserve water for future uses. The whole notion is inconsistent with Colorado's prior appropriation doctrine. The only legal theory that denies a present appropriation to preserve water for future uses is the public trust doctrine, which has repeatedly been rejected in Colorado. See, e.g. Bd. of County Comm'rs v. United States, 891 P.2d 952, 972 (Colo. 1995). In the Empire Lodge decision, the Colorado Supreme Court explained that "maximum utilization" means "maximizing the use of Colorado's limited water supply for as many decreed uses as possible consistent with meeting the State's interstate delivery obligations ..." Empire Lodge, 39 P.3d 1139, 1150 (Colo. 2001). The "maximum utilization" doctrine was further explained in Alamosa La-Jara Water Users Protection Ass'n v. Gould: The policy of maximum utilization does not require a single-minded endeavor to squeeze every drop of water from the valley's aquifers. • C.R.S. §37-92-501(2)(e) makes clear that the objective of lmaximum use administration is optimum use. Optimum use can 3