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Prehearing Rebuttal Statement of City of Steamboat Springs
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Prehearing Rebuttal Statement of City of Steamboat Springs
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Last modified
1/26/2010 4:42:06 PM
Creation date
8/11/2009 10:47:45 AM
Metadata
Fields
Template:
Water Supply Protection
File Number
8230.21A1
Description
CWCB Hearing: Applicant's Prehearing Statements
State
CO
Basin
Yampa/White
Water Division
6
Date
5/18/2004
Author
Glenn E. Porzak
Title
Prehearing Rebuttal Statement of City of Steamboat Springs
Water Supply Pro - Doc Type
Court Documents
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The City will further support its argument on the diversion and control requirement at the <br />May 26" hearing with statements and testimony by Mr. Porzak, Mr. Lacy and Mr. Neumann. <br />2. The City has an adequate interest in the land on which the structures are located. <br />The Morrison Creek Metropolitan Water and Sanitation District argues that the Board <br />should recommend against the City's claim because the left abutment of the "Charlie's Hole" <br />structure is located on land not ownecl by the City, but on land leased to the City by Union <br />Pacific Railroad. (Morrison Creek Statement at 2.) It asserts that proof of ownership is an <br />essential element in securing a conditional water right under C.R.S. § 37-92-305(9)(b). This <br />argument not only raises an issue beyond the scope of the factors the Board is to consider under <br />SB-216, but it is also without merit. <br />In the first instance, the railroad lease referenced by Morrison Creek has nothing to do <br />with the property where "Charlie's Hole" is located. More importantly, as indicated in the City <br />Staff rebuttal report (Exh: 5-27), the City consulted with the railroad about the location of the <br />structure prior to construction and received permission to locate the abutment within tlie railroad <br />right of way. The most significant point, however, is that the recreation structure is allowed <br />within the railroad right of way by the terms and reservations under which the railroad holds the <br />parcel at issue. The deed for the raiiroad's right of way ("ROW Deed") reserved the right to use <br />the land between the centerline of the river and the railroad track where the left abutment of <br />"Charlie's Hole" is located for "park" purposes, The recorded documents explaining the ROW <br />Deed and the language reserving the parcel at issue for park purposes are attached as Exh. S-33. <br />The reservation for paxk and other public purposes applies to all land between the river and a line <br />50 feet from the centerline of the actual railroad track. As shown on the survey that is submitted <br />as Exh. 5-31, the entire structure at "Charlie's Hole" lies more than 50 feet northeast of the <br />railroad track, and thus any part that is within the railroad easement is entirely on land reserved <br />for park purposes. The reservation in the ROW Deed was for the benefit of the Steamboat <br />Spring's Company, and the City is the successor in interest and current owner of the easement <br />created by that reservation. <br />Moreover, if for some reason the City's existing permission and reservation are not <br />sufficient, the City can and will condemn an easement for the small piece of land at issue. See <br />e.g. C.R.S. § 38-6-101. The closest this land ownership issue comes to being a relevant factor <br />under the Board's SB-216 authority is if it fits within whether there is access to the structures <br />under § 37-92-102(6)(b)(IIn. However, on this point, the Board should consider that the CWCB <br />diversion structures change the hydraulics of the stream, deflect the flow in different directions, <br />move water back and forth across the stream, raise the water surface profile, and change the <br />water's velocity. He conceded that this amounted to a diversion "from a physical standpoint." <br />(Exh. 5-17, at Breckenridge, Day Three Trial Transcript, p. 21-22; Vail, Day Three Trial <br />Transcript, at 33-34.) <br />Ph0751;2 -6-
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