Prehearing Rebuttal Statement of City of Steamboat Springs

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the CWCB oversight and math errors are corrected, the fact is that the City's claimed flow rates are only at the 20th percentile level. As the City's RICD complies with the CWCB's exceedance policy, the CWCB Staff has come up with a brand new standard which focuses on whether the claimed flow amounts exceed 40% of the available flow in a 2002 type drought year. (CWCB Staff at 8, CWCB Staff Exh. 16.) Such a standard is arbitrary and extreme to a fault, and has no basis or support in the law. It is also contrary to sound public policy which if equally applied (as is the law); would effectively prohibit any new appropriations: Perhaps most telling, however, is that in analyzing the 2002 drought year, the CWCB Staff failed to mention that the CWCB did not call for its upstream instream flow right. If it had, upstream water rights would have been called out in July and August; irrespective of the City's RICD. The following evidence demonstrates to a reasonable degree of scientific certitude that (1) unappropriated water is available for appropriation for the claimed flow rates during the indicated periods; and (2) when all sources are properly considered and proper mathematical calculations are made, the claimed flow rates meet the CWCB's exceedance policy. In fact, under the CWCB's exceedance policy, a flow rate of over 2400 cfs would be reasonable. Thus, the claimed flows are reasonable under the law and the CWCB's own policies and rules. The evidence includes: (a) Mr. Thompson's water availability report dated December 22, 2003 (Exh. S-7) which provides that "the average annual river flow at the Boating Park is approximately 319, 000 acre-feet per year during the period of April 15 through October 31. Of this total amount, an average of approximately 105,000 acre-feet is available to support this water right, leaving approximately 214,000 acre-feet that is surplus to this appropriation." (b) The CWCB Staff report prepared by Messrs. Seaholm, Prichard and Kowalski dated Apri126, 2004, (CWCB Staff Exhibit 16, at 2) which admits the requested RICD flows satisfy the 40"' percentile exceedance requirement. (c) Mr. Thompson's report dated January 20, 2004 (Exh. S-3) which demonstrates that the claimed RICD does not adversely impact Colorado's compact entitlement and works in tandem with existing downstream senior water rights and conditional water right and Colorado's compact delivery obligations. (d) Mr. Thompson's rebuttal report dated May 14, 2004 (Exh. 5-26) which demonstrates the claims are only at the 20`t' percentile of the average flow due to the failure of the CWCB Staff report to consider the flow of Soda Creek and to make the proper mathematical calculations. This report includes the following graph which particularly highlights the reasonableness of the claimed RICD: Ph0751;2 -1 0-