Prehearing Rebuttal Statement of City of Steamboat Springs

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Sometimes the planets are aligned, karma is good and everyday seems like a"State Fair Kind of Day." If you've been to Steamboat to paddle, you know the feeling. Here again, you can thank Father Nature, aka Gary Lacy .... there are two words you must remember when paddling Steamboat ... Charlie's Hole. Find it and you've found heaven. (Exh. S-32) On a more technical basis, the City has demonstrated its structures constitute statutory diversions of the amounts claimed without waste in the reports submitted by Mr. Lacy and the Steamboat Springs City Staff (the "City Staff') (Exh. S-4, S-6, 5-25, and 5-27.) Both Mr. Lacy and the City Staff demonstrate in their reports that the structures are working, and are creating boating features that are making the Boating Park a tremendous success. Moreover, the structures at issue are virtually identical to the structures held to constitute statutory diversions in the Golden, Breckenridge, Vail and Gunnison cases. 5enate Bi11216 did not change the statutory definition of diversion, and these decisions remain controlling authority on this point. The Board should also note that Mr. McLaughlin, the CWCB Staff's boating expert, admitted in his report that the City structures were controlling the flow of the Yampa River on the day of his visit. (McLaughlin report at 7, CWCB Staff Exhibit 14.) Furthermore, contrary to the argument of some of the opposers, the City's structures are not inefficient means of diversion. The entire amount claimed is put to use. The diversion and the use are one in the same. Not a single drop of water is wasted. Tlie diversion is completely efficient as it is 100% non-consumptive and allows downstream appropriators to use all of the water after it passes through the Boating Park. Arguments about inefficiency and waste imply there is no additional beneficial use associated with an additional increment of water. That is not the case here. The rebuttal reports by Mr. Lacy and the City Staff demonstrate greater use at the higher flow rates. In this regard, the nearly identical structures at issue in the Golden, Breckenridge and Vail cases were held not to be inefficient means of diversion. See e.g. Vail, Findings of Fact, Conclusions of Law and Decree of the Water Court at 4. ("Moreover, under the facts of this case, the Park structures accomplished this diversion in an efficient manner without loss or waste."). (Exh. 5-11.) Finally, submitted as Exh. S-16 and 5-17 are the transcripts of the trial and deposition testimony of Dr. Jeris Danielson (the former Colorado State Engineer) and Alan Martellaro (the current Division No. 5 Engineer) that the virtually identical in-channel diversion structures in the Golden, Varl and Breckenridge cases divert and control river flows to create the intended recreational beneficial use.4 aAddressing the diversion issue with respect to the structures at issue in the Vail and Breckenridge cases, Mr. Martellaro, the Division No. 5 Engineer, testified that the in-channel Ph0751;2 -5-