Prehearing Rebuttal Statement of City of Steamboat Springs

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Most egregiously, Mr. Browning's analysis is based on incomplete survey data. Mr. Browning makes it clear in his report that the HEC-RAS Model he relies on was created using data collected by Emerald Mountain Surveys, Inc. This survey was taken on April 16, 2004. The USGS gauging station 09239500 on the Yampa River in Steamboat Springs, Colorado lists the flow in the river on that day at 395 cfs. At this level the flow over both the Charlie's Hole and D Hole structures would be far too powerful and swift for a surveyor to collect data points at the center channel invert. Indeed, the Emerald Mountain Survey data presents no data points for a width of more than 30 feet at the Charlie's Hole and more than 22 feet at the D-Hole. This absence of depth data for the middle of the channel was further confirmed by the surveyor. Thus, Mr. Browning's HEC-RAS model is not valid because the channel invert elevation used is not the channel invert elevation at all, but rather the water surface elevation at 395 cfs. All of this is detailed in Mr. Lacy's rebuttal report which demonstrates that the structures do not increase the flood plain, and in fact, lowered the invert of the Yampa River downstream of the Boating Park. (Exh. 5-25). The City will further support its argument on this issue at the May 26`h hearing with statements and testimony by Mr. Porzak, Mr. Lacy and Mr. Neumann. 4. There is no impact on compact entitlements. The CWCB Staff has admitted that there is no impact on Colorado's compact entitlements (CWCB Staff at 8), and the Prehearing Order lists this as an uncontested issue. As set forth in greater detail in the "maximum utilization" section below, that admission also strongly supports the City's claim that this RICD claim furthers the "maximum utilization" principle as explained by the Supreme Court by adding a new use onto water that is reused downstream to meet Colorado's compact delivery obligations. The City will further support its argument ori this issue with statements and testimony by Mr. Porzak and Mr. Thompson. 5. 'I'he City's claims are reasonable under the CWCB's flow exceedance policy. The CWCB has adopted a policy that asserts that a RICD is unreasonable if the claimed flows are greater than 40% of the average available flows. Presumably, if a RICD claims less than 40% of the available flows, the amounts claimed are reasonable. In response, the City asserts that (a) there is no requirement under the law that an appropriation is limited to 40% of the available flow; (b) SB-216 does not grant the CWCB the right to impose such a limitation; (c) any such limitation would violate the constitutional right to appropriate the State's unappropriated waters; (d) notwithstanding, the CWCB Staff admits that the City's RICD generally meets this 40% limitation; and (e) the CWCB Staff made its determination that the City RICD does not violate the CWCB exceedance standard despite the fact it neglected to include Soda Creek, a creek which constitutes over 15% of the physical supply for the subject claim, and made a number of mathematical errors. When Ph0751,2 -9-