Prehearing Rebuttal Statement of City of Steamboat Springs

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to recommend against the right. The City will further support its argument on this issue with statements and testimony by Mr. Porzak and Mr: Thompson. 9. The City's claim promotes "maximum utilization" of the waters of the state. CWCB Staff asserts that the RICD claim does not promote maximum utilization because: (a) it prevents future development; (b) it exceeds CWCB's 350 cfs cap; (c) the RICD seeks flows for recreational opportunities such as tubing that are not enhanced by the claimed structures; and (d) the RICD can place a call at the same time that other senior rights are calling. Routt County claims the economic benefit of the course is negligible. The CWCB Staff's argument is based on a fundamental misunderstanding of the "maximum utilization" principle iri Colorado law, and Routt County's argument is simply wrong as the intended purpose of the Boating Park is to draw people to the City during the non-ski season. In the Empire Lodge decision, the Colorado Supreme Court explained "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). Any individual claim for any purpose is not limited by the "maximum utilization" doctrine which has never operated as a cap on new claims, but by the doctrines of waste and speculation. Again, as Judge Patrick made clear in the Gunnison case, SB- 216's invocation of "maximum utilization" did not change these basic principles. Gunnison, at 17. In this regard, the City's claim fits exactly with and, in fact, promotes the "maximum utilization" principle as explained by the Supreme Court. It is a new, clean use of water on top of, and that works in tandem with, existing and future downstream diversions, generating revenue without polluting or consuming a single drop. "Maximum utilization" is served because the water passing through the course is left for other Colorado consumptive uses and to fulfill Colorado's compact delivery obligations on the Yampa River (see footnote 5 above). The CWCB Staff "maximum utilization" argument is essentially a qualitative argument - that water is better left for other unspecified future uses. The CWCB Staff is attempting to limit the allowable beneficial use for a recreation right. This is not the law. Water rights for recreation are a beneficial use just like rights for hydro power and other purposes, and are not subject to more severe limits. No matter how the CWCB dresses up the argument, it is an attempt to impose the public trust doctrine to limit the City's guaranteed right to appropriate the unappropriated waters of the State. Const. Art. XVI, § 6. It is also contrary to the Supreme Court's clear direction that the right to appropriate cannot be limited based on policy concerns not specifically grounded in statute. In Board of County Commissioners of the Counry of Arapahoe v. United States, the Court held, "a public interest theory is in conflict with the doctrine of prior appropriation because a water court cannot, in the absence of statutory authority, deny a legitimate Pn0751;2 -15-