Prehearing Rebuttal Statement of City of Steamboat Springs

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(d) April 12, 2004, letter by City Staff explaining the meaning of the flows listed in "Table 2". (Exh. S-9.) That letter explains that the flow rates listed for various activities in "Table 2" in the column titled "Minimum Flow" were derived from "suggestions regarding the amount of flow necessary to protect biological resources of the natural environment and to insure that the specified activiiy does not impact these resources during the indicated time frames. This column does not set forth the minimum amounts of water necessary to achieve a reasonable recreation experience in connection with the Boating Park. The column entitled "Recommended Flows" in the bottom chart on Table 2 sets forth the minimum amounts necessary to create a reasonable recreation experience. These flow rates are less than the "Optimal Flow" column in the upper chart on Table 2. The City's RICD application applied for the Recommended Flows." (e) Excerpts of the cross-examination of Bo Shelby from the Golden case. (Exh. S- 36.) (f) The decree in the Golden case discrediting the recreation boating analysis offered by Bo Shelby (Exh. 5-10) where the Water Court held: "The Court further finds that the testimony of the State's expert witness, Dr. Shelby, does not assist the Court in rendering the decisions on "beneficial use" and "reasonableness" that must be made in the context of the Colorado appropriation doctrine. Water rights in Colorado are quantified according to the amount of water that is reasonable to serve the appropriator's intended beneficial use. Dr. Shelby did not take into account the intent of the appropriator, the City of Golden. On this point, Dr. Shelby did not consider one of the major elements of his own methodology; namely, the decision environment, which in this instance is the law in Colorado on the appropriation of water. Instead, his opinions were based on a survey of a small group of Course users. The survey results purportedly offered the flow numbers that kayakers prefer for different boating opportunities, but the Court notes that those numbers are inconsistent with the kayakers' narrative comments about the Course, which expressed a clear preference for higher flows. Dr. Shelby also admitted that the survey was unduly influenced by the period of dry years following construction of the Course. Moreover, Dr. Shelby was unable to express a definite opinion as to whether the amount claimed by Golden was unreasonable, and he admitted that his methodology did not work in the context of conditional water rights. Thus, Dr. Shelby expressed no useful opinion on the conditional components of the subject application." (Golden, Decree at 7-11 (Exh. S-10)). The City will further support its argument on this issue at the May 26th hearing with statements and testimony by Mr. Porzak, Mr. Lacy and Mr. Neumann. Ph0751;2 -13-