Prehearing Rebuttal Statement of City of Steamboat Springs

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appropriation based on public policy." Board of County Commissioners; 891 P.2d 952, 972 (Colo. 1995).6 As the foregoing authority makes absolutely clear, the Board cannot recommend against the City's claim based on its arbitrary 350 cfs policy cap, or out of concern for unspecified future uses. The following evidence demonstrates that the City's claim promotes "maximum utilization" of the waters of the state, for all of the City's intended pzuposes, including tubing: (a) The reports submitted by Mr. Thompson demonstrate the claimed appropriation adds a new use onto water that is commanded downstream by senior conditional and absolute water rights and compact delivery obligations. (Exh. S-3, 5-26.) (b) CWCB Staff admits that the appropriation does not impact Colorado's compact entitlement. (CWCB Staff at 8.) This is also an admission that the RICD comports with "maximum utilization" as that doctrine has been explained by the Supreme Court authority set forth above. (c) The rebuttal reports prepared by Mr. Lacy and City Staff demonstrate that the structures do enhance recreational opportunities, including tubing (Exh. S-4, S-6, 5-25, 5-27), which was expressly acknowledged as a beneficial use in the Ft. Collins case. (d) The City Staff reports demonstrate the economic impact of the Boating Park to the community and that they are reaping the benefits they sought in pursuing this development. (Exh. S-6, 5-27.) (e) The reports by Mr. Lacy and City Staff demonstrate that there is greater use of the structures at the higher claimed flow rates. (Exh. S-4, S-6, 5-25, 5-27.) ( fl The December 5, 1995 memorandum prepared by the CWCB Staff in connection with the CWCB's Yampa River instream flow filings explaining that the appropriation of all of the remaining Yampa River flows minus a 52,000 acre-foot carve out "can be appropriated without depriving the people of Colorado of the ability to fully develop the remaining compact apportionment." (Exh. S-$.) The CWCB Staff cannot argue that an instream flow for all the Yampa River flow is maximum utilization, but in same breath now contend that a RICD for a 6See also, Aspen Wilderness Workshop v. Colorado Water Conservation Board, 901 P.2d 1251, 1263 (Colo. 1995) ("This court has never recognized the public trust doctrine with respect to water.") People v. Emmert, 597 P.2d 1025, 1027 (Colo. 1979) (rejecting the public trust doctrine as a basis for recognizing public recreational use of water over privately owned stream beds of non-navigable waterways). Ph0751;2 -16-