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Upper Gunnison River Water Conset-vancy District <br />02CWD38 <br />when impacts imposed by the proposed RICD may or may not occur"). See also 9/18/03 Seaholm <br />transcript at 46: <br />I can certaixily state that the requested RICD will impact your abilityto develop water <br />upstream of the RICD. It's clear to me and in khe board's findings that, at 250 cfs, <br />I think there is universal agreement that there was no impaument. But with respect <br />to hying to differentiate between i.mpair and deprive, as is the standard under the <br />Instream Flow Program, I think what I really did was identify impacts on the potential <br />upstream junior development. (Emphasis added). <br />To conclude that Mr. Seaholm's identified "impacts" cause impaument, the State applies the <br />definition of "adverse impact" or "weaken, make worse." (Answer at 18.) There is no evidence <br />whatsoever that Mr. Seaholrn did any analysis to support a conclusion of "adverse impacY". As <br />reflected by the above excerpts from his trial testiunony, he merely identified impacts. Indeed, the <br />State's counsel objected to a question seeking an opinion from Mr. 5eaholm as to impairment and <br />stated: "While we all agree that 250 cfs does not impair compact entitlement, [Mr. Seaholm], as an <br />expert, has not stated at what point compact impairment does occur." (Seaholm Tr. at 19.) If Mr. <br />Seaholm as an expert did not state at what point compact impairment occurred, then the State cannot <br />now rely on his testimony; including the mere impacts he identified, as _evidence of compact <br />unpairment. <br />To the extent that the State is now arguing that any impact causes impairment because any <br />impact "makes worse" or "weakens" the ability to develop the compact entitlement, this argument <br />-25-