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Application for Water Rights of the Eagle River Water & Sanitation <br />March 12, 2002 <br />Ted Kowalski <br />Page 34 <br />Page 36 <br />1 <br />MR. CYRAN: Objection to foundation. <br />1 <br />Q. And that's where the water right is <br />2 <br />A. I believe that is the board's <br />2 <br />sought for, correct? <br />3 <br />position. <br />3 <br />A. That may be correct. <br />4 <br />Q. (BY MR. PORZAK) I take it from your <br />4 <br />Q. You indicated that, in your opinion, <br />5 <br />background as an attorney that you're aware of <br />5 <br />the structures are not reasonably efficient, and <br />6 <br />the statutory definition of a diversion, <br />6 <br />1 think you said that they're not wasteful, but <br />7 <br />correct? <br />7 <br />1 take it you meant that they are wasteful; is <br />8 <br />A. Yes, I am. <br />8 <br />that correct? <br />9 <br />Q. How does the Colorado Water <br />9 <br />A. If I did say that, I apologize, <br />10 <br />Conservation Board's position with respect to <br />10 <br />that's not correct. I believe that they are <br />11 <br />the effect of Senate Bill 212 square with the <br />11 <br />wasteful or that they aren't reasonably <br />12 <br />language, the statutory language, of what <br />12 <br />efficient. <br />13 <br />constitutes a diversion? <br />13 <br />Q. Okay. And what is the basis of your <br />14 <br />MR. CYRAN: Object to the <br />14 <br />opinion that they're not reasonably efficient <br />15 <br />foundation. <br />15 <br />and that they are wasteful. <br />16 <br />A. I believe that's more clearly laid <br />16 <br />A. I believe the basis of my opinion is <br />17 <br />out in the recently filed motion for summary <br />17 <br />partly testimony of the course designer, who has <br />18 <br />judgment, but if you look at Senate Bill 212 -- <br />18 <br />stated that they could have been constructed <br />19 <br />excuse me, the language of Senate Bill 212, it <br />19 <br />differently to accomplish the same purposes. <br />20 <br />explicitly provides that the board is the only <br />20 <br />There's also the flow amounts that they're <br />21 <br />entity who can seek an appropriation for an <br />21 <br />seeking. <br />22 <br />instream flow for any purpose whatsoever, and I <br />22 <br />Q. And who is it that testified that <br />23 <br />believe that that language, that explicit <br />23 <br />the course could have been constructed <br />24 <br />language, is what the board is contending in <br />24 <br />differently to accomplish the intended purpose? <br />25 <br />these cases has been violated. <br />25 <br />A. Gary Lacy. <br />Page 35 <br />Page 37 is <br />1 <br />Q. (BY MR. PORZAK) How is it that the <br />1 <br />Q. And what is your understanding of <br />2 <br />claimed appropriations for the Vail and <br />2 <br />his testimony in that regard? <br />3 <br />Breckenridge white -water courses constitute an <br />3 <br />A. My understanding, it's -- of his <br />4 <br />instream flow? What's the factual basis for <br />4 <br />testimony was that the courses could have been <br />5 <br />that opinion? <br />5 <br />designed differently to accomplish the same <br />6 <br />A. Well, they're for a stretch of the <br />6 <br />purposes, but that's the gist of it. <br />7 <br />stream, they are in the channel, the channel or <br />7 <br />Q. Do you have any personal knowledge <br />8 <br />the river flows within the same channel that it <br />8 <br />or expertise that would allow you to form the <br />9 <br />did prior to structures being put in place, so <br />9 <br />opinion that the courses could have been <br />10 <br />that that would be some of the reasons. <br />10 <br />constructed differently to accomplish the <br />11 <br />Q. You say that it's -- the <br />11 <br />intended beneficial use? <br />12 <br />appropriations are for a stretch of the river. <br />12 <br />A. I have some knowledge about other <br />13 <br />What's the basis of that statement? <br />13 <br />courses that exist out there, for example, the <br />14 <br />A. Their applications -- for example, <br />14 <br />Golden course, the Littleton course, and the <br />15 <br />the Vail application talks about the white -water <br />15 <br />Fort Collins courses. To the extent that that <br />16 <br />course being for a stretch of the river of <br />16 <br />knowledge could relate to my opinions about how <br />17 <br />approximately 300 feet. Similarly, the <br />17 <br />efficient these structures are, that's knowledge <br />18 <br />Breckenridge course states -- excuse me, the <br />18 <br />1 have, but -- <br />19 <br />Breckenridge application states that the course <br />19 <br />Q. What is -- what is your expertise <br />20 <br />extends for approximately 1500 feet, I believe. <br />20 <br />that would allow you to opine as to whether or <br />21 <br />Q. But the actual water rights claimed <br />21 <br />not structures are operating efficiently? <br />22 <br />are for specific points of diversion, are they <br />22 <br />A. I don't know that I have an <br />23 <br />not? <br />23 <br />expertise with regard to whether or not <br />24 <br />A. The actual claimed diversions are <br />24 <br />structures are operating efficiently. <br />25 <br />identified at specific points, that's correct. <br />25 <br />Q. In fact, you have no expertise to <br />10 (Pages 34 to 37) <br />Esquire <br />Deposition Services <br />(303) 316 -0330 <br />