Recreation Water Rights - "The Inside Story"

• Description: RICD
• State: CO
• Date: 1/1/3000
• Author: Glenn E. Porzak, Steven J. Bushong, P. Fritz Hollerman, Lawrence J. MacDonnell
• Title: Recreation Water Rights - "The Inside Story"
• Water Supply Pro - Doc Type: Publication

Recreational In- Channel Diversions ( RI C Ds) Glenn E. Porza Esq.
kayaker Scott Shipley from testifying. In the Court's eventual oral ruling from the bench, Judge O'Hara f,
cited Mr. Shipley's testimony as particularly persuasive. 75
The Court also heard from the CWCB's "recreation experts" and considered the data they had
collected regarding use at the boating park. The Court heard extensive testimony from the CWCB's
expert on whitewater park design, who argued that more work and money should have been invested by
the City in the design process for the boating park, and suggested that it might have been possible to
design the structures to achieve the same boating experience at lower flow rates. At the close of trial,
the Court issued a rare and extensive ruling from the bench.
In that oral ruling, the Court discussed the Gunnison decision and the 5 criteria required to be
considered under SB 216. Again, the CWCB had already recommended in the City's favor on three of
these issues. As for the two adverse CWCB recommendations, the Court concluded that the City had
overcome the presumptive weight accorded the recommendations on the appropriate stream reach and
maximum utilization criteria. 76 Concerning the CWCB's attempt to tell the City that the reach of the
Yampa River it selected for the boating park was not appropriate, the Court said the following: "The
Court finds that there was evidence presented by the Applicant that this was not only the appropriate
stream reach, but the only available stream reach for this use on the Yampa River within the municipal
boundaries. "
With regard to the amount of money spent on the design process, the Court held:
This Court emphatically rejects the implication that this application should be denied
because the City did not spend enough money on this project or that expenditures of
hundreds of thousands of dollars is de facto necessary to support such an application.
I find that there is absolutely nothing improper with the municipality seeking a world
class facility at, to quote the State, WalMart prices. 78
In conclusion, the Court stated, "[t]his Court finds that the evidence presented by Applicant has
proven by a preponderance of the evidence that Applicant is entitled to the decree sought." 9
The final decree, signed March 13, 2006, confirmed absolute water rights for the City in the
amounts requested for boating, kayaking, inner - tubing, rafting, and canoeing. 80 The decree recognized
the City's purpose in constructing the park was to "create a recreational amenity that would draw boaters
and spectators to the region. Specifically, the boating park was built to generate greater tourist revenue
outside the ski season by meeting the recreational boating and tubing demands of the City's citizens and
visitors, and creating a venue for special events. " The claimed flow amounts at the identified time
intervals were found to "meet these reasonable objectives. "
75 Id. at 13.
76 Id. at 10.
77 Id. at 12.
78 Id. at 14.
79 Tr. at 15.
80 Amended Findings of Fact, Conclusions of Law and Decree of the Court, Case No 03CW86, March 13, 2006.
" Id., ¶ 60) at 5.
82 Id.
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