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7. The City's RICD claim can be administered lnke any other water right. <br />Some of the opponents of the City's claim argue that the right cannot be administered. <br />That position is unsupportable, and contrary to the admissions of both the CWCB and the State <br />Engineer's Office in prior RICD cases that these rights can be administered like any other water <br />right. In the Golden case, for example, the State Engineer and the CWCB stipulated that "the <br />water rights sought by Golden are capable of administration and the USGS gage at Golden is <br />sufficient for use for this purpose." (Exh. 5-20.) The Division Engineer for Water Division No. 5 <br />made similar statements in the Breckenridge case. (Exh. S-23). Mr. Thompson explains in his <br />rebuttal report that the City's right can be administered like any other water right by reference to <br />gauges near the Boating Park. (Exh. 5-26.) The City will further support its argument on this <br />issue with statements and testimony by Mr. Porzak and Mr. Thompson. <br />8. Any impact on future appropriations is not a basis to recommend against this claim. <br />The opposers' prehearing statements devote a great deal of argument to the impact that the <br />City's RICD will have on future upstream junior water rights and on exchanges. Again, this <br />factor goes beyond what the Board can review under SB-216. As set forth in greater detail in the <br />"maximum utilization" section below; this argument is essentially the public trust doctrine in <br />reverse and was rejected as a matter of law in the Golden, Vail, Breckenridge and Gunnison <br />decisions. Every water appropriation impacts future appropriations -- that is the priority system, <br />but it is not a basis to recommend against the constitutional right to appropriate. <br />On a practical level, the Board should recognize that this claim is 100% non-consumptive, <br />and every drop is available for downstream use to meet existing and future downstream absolute <br />and conditional water rights, including Colorado's compact delivery obligations.s Mr. Thompson <br />demonstrates in his reports that the claimed flows leave substantial unappropriated water for <br />future upstream development and exchange potential, and that there is over 88,000 acre feet of <br />senior conditional storage and significant conditional direct flow water rights upstream of the <br />Boating Park. (Exh. S-3, S-7, 5-26.) The fact that the City's claim is well below the Board's 40t'' <br />percentile flow exceedance policy also means that any impact on future upstream junior water <br />rights and exchanges is reasonable under the CWCB's own policy, and this issue cannot be a basis <br />SAs detailed in Mr. Thompson's January 20, 2004 report (Exh. S-3), Colorado is <br />obligated under the Colorado River Compacts to deliver 500,000 acre feet per year on average <br />from the Yampa River as measured at the Maybell Gage. The Maybell Gage is 97 miles <br />downstream of the Boating Park. This is five times the amount of water sought in connection <br />with the City's RICD. In addition, downstream of the Boating Park there are 2,131,250 af of <br />existing conditional storage rights, 5320 cfs of direct flow conditional rights and 1040 cfs of <br />absolute direct flow rights. These water rights already have the potential to place ca11s against <br />future upstream water rights. Moreover, since the City's RICD is 100% nonconsumptive, every <br />drop that passes through the course can be used downstream to meet these existing water rights <br />and compact delivery obligations. <br />Ph0751;2 -14-