Prehearing Rebuttal Statement of City of Steamboat Springs

Home Browse Search

Moreover, the Board should be wary of assuming responsibility for evaluating the flood impacts of RICD structures. Such an assertion of authority might also bring unwanted liability for flooding that does occur. Primary responsibility for the flood impacts of new construction in a flood plain is delegated under state law to local government. C.R.S. § 31-23-301(1) (municipalities); § 30-80-111(1)(counties). The CWCB's responsibility with respect to flood control is primarily to advise and assist local governments in their direct flood control regulation. C.R.S. § 37-60-106(1)(c)). The Board should not go further without express legislative direction and careful consideration of the litigation risks. Most relevant to the case at issue, however, is the fact that the reach selected for the Boating Park was dictated by the recreation needs the City sought to meet, the geography, and the City's overall river management objectives. In this regard, specific attention should be given to the City's Yampa River Management Plan (Exh. 5-28) which was over three years in the making, and the City Staff rebuttal report (Exh. 5-27) which explains the Management Plan. That Management Plan dictates the appropriate stream reach for the Boating Park to disperse various competing recreation activities on the Yampa River and meet the City's objectives for the Yampa River. Because the Board's focus in determining the "appropriate reach" must be made with a view toward the City's intended purposes, no further inquiry under § 37-92-102(6)(b)(II) is necessary or appropriate. The CWCB Staff seeks to undo 3+ years of effort by the City and its citizens, and the expenditure of hundreds of thousands of dollars by contending that the Boating Park and all associated parking were built in the wrong location. This position is all the more appalling when there is nothing in SB 216 or its legislative history to allow such a determination to be made based on flood control issues. To the contrary, the legislative history makes it clear that the appropriateness of a stream reach can only be judged in the context of the applicant's intended purpose. For a more complete discussion confirming that the Boating Park is an appropriate reach to meet the City's objections, please refer to the reports prepared by Mr. Lacy (Exh. S-4, S- 25), the reports prepared by City Staff (Exh. S-6, 5-27), and the City's Yampa River Management Plan. (Exh. 5-28.) In addition to the foregoing; it shoulci be noted that the CWCB Staff's characterization of the flood impacts caused by the diversion structures at issue is simply not accurate. As detailed by Mr. Lacy in his rebuttal report (Exh. 5-25), the flood control modeling used by Mr. Browning is not calibrated and is based on inaccurate assumptions. For example, he assumed the wrong pre-existing cross section. Mr. Browning mistakenly took an area that was excavated by course construction and assumed it was the pre-existing condition. As if this were not enough, he compounds his error by focusing his analysis on a pre-existing fish structure, and not on the impact of the Boating Park structures. Similarly, in alleging the course structures cause sediment deposit, Mr. McLaughlin offers a supporting photo of a pre-existing sand bar upstream of the structures. (McLaughlin at figure 2.) rho7si;2 -8-