Orders Re: Applicant's Motions in Limine, S-30

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.? : Water Court r IL?:zI ,'? TWtI: f??U?=?' Weld County, State of Colorado C;);?; ^rFJ-U :?.,?R?.Sf Y Court Address: 901 9`h Avenue, Greeley, CO 80631 "?? Z001 Phone Number :(970)351-7300 Extension 4535 PH ?' 59 CONCERNING THE APPLICATION FOR WATER RIGHTS OF: THE CITY OF GOLDEN, Applicant IN DOUGLAS COUNTY . I COURT USE ONLY Case Number: 98 CW 448 ORDERS Re: Applicant's Motions in Limine VVater Division No. 1 Applicant ("Golden") moves to exclude Opposers' ("State") expert witness opinions, asserting that the opinions were both untimely disclosed and are irrelevant. Although the time for Golden's reply to the State's response will not run until after trial commences, the court now rules so that the parties' may notify those witnesses whose need to appear will be affected by this order. The court will reconsider the orders herein upon receipt of Golden's reply. The "duty of water", first articulated in Farmers Highline Canal v. Go[den,125 Colo. 575 (1954) is defined as the . "measure of water, which, by careful management and use, without wastage, is reasonably required to be applied to any given tract of land for such period of time as may be adequate to produce therefrom a mcxYimum amount of such crops as ordinarily are grown thereon. " Id., at 58485. This concept is now codified as § 37-92-103(4), which states in pertinent part: (4) "Benefrcial use" is the use of that amount of water that is reasonable and appropriate under reasonably eff cient practices to accomplish without waste the purpose for which the appropriation is lawfully made and, without limiting the generality of the foregoing, includes the impoundment of water for recreational purposes, including frshery or wildlife..." Therefore, Golden's burden is to establish that the flow rates it seeks do not exceed the reasonable rates needed to fulfill its stated purpose. Over-appropriation by Golden would serve no beneficial use, and would reduce the water available for appropriation-tiy upstream junior appropriators. Thus, expert opinion offered by the State to establish the reasonable water requirements of Golden's proposed kayak course is relevant. With respect to the timing of its disclosures, the court notes that the State timely filed a general disclosure of the scope of its expert opinion that did not meet the requirements of C.R.C.P. Rule 26(a)(2)(B)(II). The State thereafter untimely fited its supplemental expert disc(osure ten days following the deadline set by the case management order. The nature of kayaks courses in general, and Golden's proposed kayak course in particular, is factual question of first impression in this division and is novel to the Colorado water courts. Therefore, the interest of fully litigating this question outweighs Golden's interest in striking the State's expert testimony on the subject. Accordingly, Golden's motion to strike is denied. 98CW448.InLtmQrd v S-3Q