Prehearing Rebuttal Statement of City of Steamboat Springs

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SB-216 did not change the law set forth above. That legislation defined "recreational in- channel diversion" ("RICD") as the "minimum stream flow as it is diverted, captured, controlled and placed to beneficial use... pursuant to an application... for a reasonable recreation experience in and on the water." C.R.S. § 37-92-103(10.3). SB-216 also directed the CWCB and then the Water Court to consider whether a claimed RICD promotes the State's policy of "maximum utilization." In the first RICD decision rendered after SB-216, Judge Patrick in Water Division No. 4 explained that this legislation did not change the fundamental concepts that guide the appropriation of water in Colorado: "under traditional water law principles, maximum utilization and beneficial use are balanced against speculation and waste .... Had the legislature intended to deviate from that balance in Senate Bi11216, they would have said so." Concerning the Application for Water Rights of the Upper Gunnison Water Conservancy Dist., Colorado Dist. Court Water Div. No. 4, Case No. 02CW038 (Dec. 2003)(hereafter "Gunnison") (Exh. S- 15). Judge Patrick further explained that even after SB-216, the focus must remain on the applicant's intent: "This Court is reluctant to intervene to usurp the Applicant's determination of the size and scope of a RICD, subject to the traditional criteria of speculation and waste. Accordingly, the Court will not second guess the Applicant in its requested amount.... To preclude an Applicant from determining precisely the size and scope of any recreational in- channel diversion would appear to infringe on the Constitutional right to appropriate." Gunnison at 19, citing Santa Fe Trail Ranches Properry Owners Ass. v. Simpson, 990 P.2d 46, 53 (Colo. 1999); ("A water right comes into existence only through application of the water to the apnropriator's beneficial use."(emphasis added)). Given the foregoing, iriquiries about whether the City has made a statutory diversion, and whether its claimed amounts are reasonable are not made in the abstract; rather, such inquiries must be judged in the context of whether the water claimed has been controlled for the appropriator's beneficial use-i.e., whether the appropriation will "accomplish without waste the purpose for which the appropriation is lawfullv made." C.R.S. § 37-92-103(4)(emphasis added). Indeed, in the post SB-216 Gunnison case, the CWCB filed a post-trial "Motion to Clarify the State's Position" wherein it finally "concede[d] that the Applicant's intent is relevant to what recreational experience is sought `pursuant to an application' filed under section 37-92-103 (10.3)." (Exh. 5-29.) However, despite the unmistakable focus of the five major in-channel recreational decisions explained above, it appears that the CWCB Staff is unwilling to recognize the prior case law and make the same admission in this matter as it did in the Gunnison case.3 The CWCB Board (the "Board") should not make the same mistake. The City constructed the Boating Paxk and the in-channel diversion structures at issue in order to create a first-rate recreational amenity. Its purpose was to generate greater tourist 3The omission of the City's intent from the CWCB Staff Statement, as well as its failure to cite the five major in-channel recreation decisions to date, elevate the City's concern that the CWCB Staff does not act as a neutral reviewer of RICD claims. A history of the evolution of the CWCB's strident opposition to the in-channel recreation claims filed to date further illustrates this point. Ph0751;2 -3-