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<br />" <br /> <br />e <br /> <br />Colorado Water Conservation Board <br />January 21, 2004 <br />Page 1. <br /> <br />e <br /> <br />. <br /> <br />5. Legal Survey of the Boating Park RlCD structures. These structures are located <br />on City property. The distance between the two course structures is approximately 630 feet. <br />There are no instream flows within this reach of the Yampa River. <br /> <br />6. Information furnished by the Office of the Director of Parks and Recreation <br />Services of the City of Steamboat Springs regarding the access to the Boating Park RlCD <br />structures and the lack of impediments thereto, the nature of the recreation experience sought, the <br />times of usage, the economic impact of such usage, the basis of the claimed flow rates, and the <br />necessary construction permits, <br /> <br />7. Report dated December 22,2003, prepared by the water resource engineering firm <br />ofW,W. Wheeler, and Associates, Inc., indicating that water is available for appropriation for the <br />amounts claimed in connection with the City's RICD. <br /> <br />With regard to the issue of a CWCB hearing, SB216 does not give the CWCB any <br />authority to substitute its judgment for the intent of an appropriator in determining the claimed <br />flow rates, Judge Patrick in the recent Gunnison decision ruled that "[t]o preclude an applicant <br />from determining precisely the size and scope of any recreational in-channel diversion would <br />appear to infringe on the constitutional right to appropriate." Notwithstanding, the CWCB's <br />RICD Policy sets a maximum limit of 350 cfs for any RICD. It sets this limit without regard to <br />the intent of an appropriator and the characteristics of a particular river. Since this pre- <br />established limit bears no relationship to the facts of any particular application, it is arbitrary, <br />capricious and in excess of the CWCB's statutory authority. <br /> <br />As evidenced by the enclosed materials, the City's requested flow rates exceed 350 cfs. <br />We have been advised by the CWCB' s staff that any flow rate in excess of 3 50cfs would not <br />receive a favorable recommendation given the RlCD Policy. In view of the foregoing, the City <br />of Steamboat Springs does not believe any hearing would be productive on the issue of the <br />claimed flow rates. ' <br /> <br />The CWCB has also taken the position that its interpretation of the so-called 1 02(b) <br />compact factors are based on the question of whether there will be anv impact. As noted by <br />Judge Patrick in the Gunnison case decision, "Such an analysis is inappropriate. Utilization of <br />that analysis would presumptively preclude any RICD or any other water right for that matter <br />since presumptively any water right will impact others." Given this extreme and inappropriate <br />interpretation of the compact issue by the CWCB, the City of Steamboat Springs does not believe <br />. any hearing would be productive on the issue of compact impact. <br /> <br />fd8200 <br />