Prehearing Rebuttal Statement of City of Steamboat Springs

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Staff has conceded that there is adequate access to the Boating Park structures. (CWCB Staff at 7.) Other parties filing statements in opposition to the City's claim have argued that the City does not own the diversion structures in the Boating Park. Again, this is beyond the Board's authority under SB-216, but it is also without merit. The rebuttal report filed by City Staff explains how the structures were funded and are currently owned. (Exh. S-27). The quit claim deed from the Friends of the Yampa River that is submitted herewith puts this issue to rest. (Exh. S-21). The City will further supplement its argument on this issue with statements and testimony by Messrs. Porzak, Lettunich, Neumann and Brenner. 3. Flood issues are not a basis to recommend that the Boating Park is not an "appropriate reach" of the Yampa River for the City's intended purposes. CWCB Staff principally argues against the City's claim on the ground that the diversion structures will adversely effect the flood plain. (CWCB Staff at 5-7). The CWCB Staff's argument rests on the Apri126, 2004 report prepared by Mr. Browning. (CWCB Staff Exhibit 15). CWCB Staff has also submitted a report prepared by Mr. McLaughlin offering his field observations that the diversion structures constrict the river channel, and concluding there will be a negative impact on the flood plain. (CWCB Staff Exhibit 14.) Once again, not only are these concerns beyond the scope of what the Board is authorized to review under SB-216, they are also grossly inaccurate. SB-216 directs the CWCB to make a finding concerning the "appropriate reach of stream required for the intended use." C.R.S. § 37-92- § 102(6)(b)(II). The express focus of the plain language requires only that the Board make a finding on whether the stream reach is appropriate for the City's purposes in building the structures. That plain language reading is confirmed by the legislative history on SB-216 where CWCB Director Kuharich explained: "Now the second finding would be whether the identified reach is appropriate for the intended use, the length of reach, such as that." (Exh. 5-24, April 12, 2001 transcript at 3)(emphasis added).) There is absolutely nothing in the legislative history of SB-216 that would allow the CWCB to use flood control issues as a basis to recommend against a RICD. The complete legislative history is attached as Exh. 5-24, and not a single person testifying either in support of or against the bill suggested that "appropriate reach" could include flood control considerations. The fact is that flood control issues have never been a basis to deny a water right, and there is nothing in SB 216 that creates the ability to establish such a precedent. Every traditional direct flow diversion, not to mention every storage facility, potentially impacts the flood plain to some degree. It simply never has been an issue in the water rights context, and recommending against a water right on a flood control basis would run directly contrary to the constitutional right to appropriate. Colo. Const. Art. XVI, § 5. Ph0751;2 -7-