Prehearing Rebuttal Statement of City of Steamboat Springs

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revenue outside the ski season; meet the recreational boating and tubing demands of its citizens and visitors; and focus use of the Yampa River corridor in a manner consistent with its overall river management objectives as explained in its river use ordinances and its Yampa River Management Plan. To this end, it has claimed flow rates in amounts and at time intervals to meet those objectives. The overriding issue for the Board to consider is whether the City's claim is reasonable in light of those objectives. Although the City reserves the right to challenge the constitutionality of SB-216, even assuming its constitutionality, this legislation only grants the Board a limited role in reviewing a RICD application. That review is restricted to making recommendations to the Water Court on the express criteria set fortfi at § 37-92-102(6)(b)(I-VI). The Board must reject the invitation apparent in the opposers' pre-hearing statements to consider matters beyond the purview of SB- 216, and recognize that it is sitting in a limited advisory capacity to the Water Court. The specific arguments raised in the pre-hearing statements submitted by the CWCB Staff and the other opponents of the City's claim are organized below, together with the City's rebuttal argument and evidence on each point. 1. The structures divert and control the flows claimed. The CWCB Staff urges the Board to find that the City has failed to meet its burden of showing that the diversion structures at issue control the flows claimed in a manner sufficient to constitute a statutory diversion. (CWCB Staff at 5). The CWCB Staff's argument is that the City has not supplied sufficient design documents and hydraulic analysis for the Board to recommend that the water is controlled as required. The City's first response to this argument is that SB-216 does not give the Board any authority or responsibility for reviewing or assessing whether the structures constitute statutory diversions. The Board's inquiry is limited to the factors set out at § 37-92-102(6)(b)(I-VI), which do not allow or require a recommendation on this issue. Second, the "diversion" inquiry is not a theoretical exercise involving extensive analysis of preconstruction design documents. As determined in the well established case law cited above, the test for "diversion" under § 37-92-103(7) is whether the structures "function as designed" to meet the appropriator's intended purpose. See City of Thornton v. City of Fort Collins, 830 P.2d 915, 929-32 (Colo. 1992). SB 216 did not alter this standard. The structures at issue here are already built, and function as designed to meet the City's intended purpose. Perhaps the best evidence that the structures function as designed is the recent article in the May 2004 edition of Rocky Mountain Sports magazine which said the following about the Boating Park: Ph0751;2 -4-