Recreation Water Rights - "The Inside Story"

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Recreational In- Channel Diversions (RICDs) Glenn E. Porzak, Esq. CWCB recommended that the claim be denied. It issued its written recommendation in June of 2004. While satisfied with the compact, access, and instream flow protection factors required to be considered under SB 216, the CWCB recommended against the claim because, in the CWCB's opinion, the boating park was not in an appropriate stream reach (this despite the fact the reach was selected by a river management plan seven years in the making), and did not serve the concept of maximum utilization of Colorado's water resources. Following the CWCB hearing, but well in advance of trial, the City entered into extensive settlement negotiations with the objecting water users in the Yampa River basin. The City pursued those settlement negotiations to promote comity with its neighboring water users in the basin, but also to address the direction from the Gunnison decision that the reasonableness of any RICD claim would be judged, in part, by whether it left room for upstream consumptive uses. 73 Eventually, the City reached agreements with all of the other water users in the basin. The settlements reduced the City's high flow claim of 1700 cfs down to 1400 cfs, and contained other terms and conditions to protect the existing and future water needs of upstream water users. Despite the objection of the CWCB to these settlements, they were approved by the Water Court. Thereafter, only the State Engineer and the CWCB continued to oppose the City, and they forced the case to trial. In response to the CWCB's continued strident opposition, the City put together a "dream team" of expert and lay witnesses, which included City officials; members of the City's recreation water advisory board; expert whitewater park designer Gary Lacy; many expert kayakers including three time Olympian Scott Shipley, himself also a boating park designer; former Colorado State Engineer Jeris Danielson; well -known water resources engineer Gary Thompson; fisheries biologists; and economists. The CWCB took the deposition of all of these witnesses, and many other people. In all, the parties took more than twenty depositions. The CWCB also perpetuated its opposition with a series of pre -trial motions. Among other objections, the CWCB argued in a pre -trial motion in limine that the Water Court should exclude all evidence concerning the economic value of the boating park to the City. In this manner, the CWCB attempted to keep the Water Court from hearing from the City's expert economist who put the value of the boating park to the City at approximately 7 million dollars per year. The CWCB's motion was denied. In a lengthy and bizarre motion, the CWCB asked the Court to dismiss the RICD claim and void all of the settlements that the City had reached with other water users on the grounds that the City violated a fiduciary duty it owed its citizens when it agreed to limit its RICD right in the settlements with other water users. The Court also denied this motion, and the case proceeded to a two -week trial. The State brought twelve stuffed binders of exhibits to the trial with over 600 exhibits. 74 The Court heard from all of the City's witnesses, despite the CWCB's motion to prevent former Olympic 72 Findings and Recommendations of the Colorado Water Conservation Board to the Water Court, Concerning the Application for Water Rights of the City of Steamboat Springs, in Routt County, Colorado, June 11, 2004. 73 The Court suggested an analysis of reasonableness "will vary from application to application depending on the stream involved and the availability of water within the basin." Gunnison, 109 P.3d at 602. 74 See Transcript, Case No. 03CW86, Friday, October 28, 1995, at 2. CLE INTERNATIONAL ■ PAGE K -25 ■ COLORADO WATER LAW