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Case No. 03CW86 Findings of Fact, Conclusions of Law and Decree of the Court 2005
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Case No. 03CW86 Findings of Fact, Conclusions of Law and Decree of the Court 2005
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Case No. 03CW86 Findings of Fact, Conclusions of Law and Decree of the Court 2005
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Case No. 03CW86 Findings of Fact, Conclusions of Law and Decree of the Court 2005
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visitors, and creating a venue for special events. The Court finds that the City has claimed flow <br />rates in amounts and at time intervals to meet these reasonable objectives <br />The flow rates claimed and decreed herein were developed by the City as part of a <br />multi -year, intensive planning process for its Yampa River corridor. City Staff testified that the <br />City devoted thousands of man hours, and hundreds of thousands of dollars over many years to <br />identify and establish suitable recreation activities with corresponding stretches of river in order <br />to develop quality recreational opportunities for many different recreational users. Given its <br />location, the Boating Park focuses use of the Yampa River in a manner consistent with the City's <br />overall river management objectives, as explained in its river use ordinances and its <br />comprehensive Yampa River Management Plan adopted in 2003. The flow rates claimed and <br />decreed herein were developed by the City and it Citizens Advisory Committee out of that <br />intensive planning process, and were carefully tailored to be the minimum necessary to meet the <br />City's objective for the Boating Park section of its Yampa River corridor. <br />The CWCB argues that a certain "Table 2" of "Recommended Flows" for "Yampa River <br />Recreational Uses" prepared by the City demonstrates that the flow rates are not the minimum <br />amounts for a reasonable recreation experience. The Court disagrees. The Court has reviewed <br />the April 12, 2004, letter by City Staff explaining the meaning of the flows listed in Table 2, as <br />wells as the testimony of City Staff and members of the City's Citizen Advisory Committee. <br />That letter and testimony explain that the flow rates listed for various activities in the column <br />titled "Minimum Flow" were derived from suggestions during its river planning process for the <br />amount of flow necessary to protect biological resources of the natural environment and to insure <br />that the specified activity did not impact these resources during the indicated tune frames. The <br />Court accepts this explanation and concludes that this column does not set forth the minimum <br />amounts of water necessary to achieve a reasonable recreation experience in connection with the <br />Boating Park_ Rather, as explained by City Staff, the column entitled "Recommended Flows" in <br />the bottom chart on Table 2 sets forth the minimum amounts necessary to create the City's <br />intended reasonable recreation experience. The Court notes that the City's RICD application <br />applied for the "Recommended Flows" in Table 2, and that these claimed flows are significantly <br />less than the "Optimal Flow" column in the tipper chart on Table 2. <br />Mr. Thompson has demonstrated in his various letter reports, particularly his report dated <br />April 15, 2005, that the Yampa River basin is not over - appropriated, and that a variety of water <br />development strategies, including new junior diversions and exchanges from downstream, can be <br />used to support development of the Yampa River basin above the Boating Park through projected <br />build -out. The Gunnison decision suggests such considerations might be relevant in determining <br />whether a claimed flow rate is for a "reasonable recreation experience." Gunnison at 602. <br />The CWCB has argued that the claimed RICD flows are not for the minimum necessary <br />to provide a reasonable recreation experience on the grounds that its Recreational In- Channel <br />Diversion Policy Regarding Technical Criteria ( "Policy ") suggests that RICD claims should be <br />ph084I42 -6- <br />
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