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Application for Water Rights of the Eagle River Water & Sanitation <br />March 12, 2002 <br />Ted Kowalski <br />Page 38 <br />Page 40 <br />1 <br />determine whether or not a course structure <br />1 <br />MR. CYRAN: Objection to foundation. <br />2 <br />operates efficiently, correct? <br />2 <br />A. For example, if an appropriator <br />3 <br />A. Yes, I have no expertise in that, <br />3 <br />seeks to use a water right for agricultural <br />4 <br />correct. <br />4 <br />purposes, to the extent that an examination of <br />5 <br />Q. And you have no expertise to <br />5 <br />waste as it relates to domestic purposes would <br />6 <br />determine whether or not a course structure <br />6 <br />be inappropriate, but an examination of waste <br />7 <br />wastes water; is that correct? <br />7 <br />with regard to those agricultural purposes, <br />8 <br />A. I don't believe I'm going to be <br />8 <br />i.e., the duty of water does relate to the <br />9 <br />testifying as expert with regard to whether <br />9 <br />appropriation intended use, yes. <br />10 <br />these courses waste water, no. <br />10 <br />Q. In Deposition Exhibit 18, the <br />11 <br />Q. But regardless of whether or not you <br />11 <br />statement is made that the applicant's <br />12 <br />intend to testify in that, you have no expertise <br />12 <br />application may cause injury to the CWCB's water <br />13 <br />that would allow you to testify as to whether or <br />13 <br />rights decreed in Case No. 77 -- it says W, but <br />14 <br />not the structures waste water, correct? <br />14 <br />I assume it means CW3637. <br />15 <br />A. I don't know if I would agree with <br />15 <br />A. Actually, I think that means W, <br />16 <br />that completely. I have some knowledge about <br />16 <br />'cause prior to '80, they -- <br />17 <br />structures and whether or not they would waste <br />17 <br />Q. Okay. I guess that -- <br />18 <br />water. For example, it's my understanding under <br />18 <br />A. -- only read W. <br />19 <br />the statute that if a structure could have been <br />19 <br />Q. Is that the position of the Colorado <br />20 <br />designed to accomplish the purposes using <br />20 <br />Water Conservation Board? <br />21 <br />100 cfs, and they were designed to accomplish <br />21 <br />A. Yes, it is. <br />22 <br />the purpose using 200 cfs, I believe that's <br />22 <br />Q. How do the claimed water rights <br />23 <br />knowledge that I have that that would violate <br />23 <br />in Case No. OOCW259 injure the CWCB's water <br />24 <br />the waste provision of the statute. <br />24 <br />rights decreed in Case No. W3637? <br />25 <br />Q. What knowledge or expertise do you <br />25 <br />A. In the opinions of some of the Eagle <br />Page 39 <br />Page 41 <br />1 <br />have that a given course structure could create <br />1 <br />River Water & Sanitation District's experts, <br />2 <br />the same beneficial use or experience at 100 cfs <br />2 <br />they state that there is no longer a natural <br />3 <br />as it could at 400 second feet? <br />3 <br />environment that exists on this stretch of the <br />4 <br />A. I don't have that expertise. <br />4 <br />river. To the extent that that is true or that <br />5 <br />Q. If you don't have that expertise, <br />5 <br />is their opinions, that is based in part because <br />6 <br />then how can you form the opinion that a course <br />6 <br />of the construction of these structures and <br />7 <br />structure is wasting water? <br />7 <br />based in part upon the water rights -- or, <br />8 <br />A. Because the course designer has made <br />8 <br />excuse me, based in part because of the water <br />9 <br />statements that the course could have been <br />9 <br />rights that the Eagle River Water & Sanitation <br />10 <br />designed differently to accomplish the same <br />10 <br />District is seeking, and to the extent that <br />11 <br />purposes, so that's how I can render that <br />11 <br />those water rights, if decreed, would thwart the <br />12 <br />opinion, based upon that statement. <br />12 <br />ultimate beneficial use for which the CWCB has a <br />13 <br />Q. Assuming that that's what was said, <br />13 <br />decree, that is, to preserve the natural <br />14 <br />how is it that you have any expertise to know <br />14 <br />environment to a reasonable degree, that causes <br />15 <br />whether or not that statement is accurate? <br />15 <br />injury to the board's instream flows. <br />16 <br />A. I don't have any expertise in <br />16 <br />Q. Is it the CWCB's contention that <br />17 <br />knowing whether or not that statement is <br />17 <br />once it appropriates an instream flow, then <br />18 <br />accurate, I guess. <br />18 <br />there can be no construction within the stream <br />19 <br />Q. Is waste measured in the context of <br />19 <br />channel or no alteration of the stream channel <br />20 <br />the intended beneficial use? <br />20 <br />within that stream reach? <br />21 <br />MR. CYRAN: Objection to foundation. <br />21 <br />A. No, that's not the board's position. <br />22 <br />A. I think waste relates to the <br />22 <br />Q. By virtue of the instream flow, does <br />23 <br />intended use, yes. <br />23 <br />the CWCB have an ownership interest in the <br />24 <br />Q. (BY MR. PORZAK) How does waste <br />24 <br />stream channel? <br />25 <br />relate to the intended beneficial use? <br />25 <br />MR. CYRAN: Objection to foundation. <br />11 (Pages 38 to 41) <br />Esquire <br />Deposition Services <br />(303) 316 -0330 <br />