Deposition of Ted Kowalski

• Description: Case No. 00CW259 Vail RICD and Case No. 00CW281 Breckenridge RICD
• State: CO
• Basin: Colorado Mainstem
• Water Division: 5
• Date: 3/12/2002
• Author: District Court, Water Division No. 5
• Title: Deposition of Ted Kowalski
• Water Supply Pro - Doc Type: Court Documents

Application for Water Rights of the Eagle River Water & Sanitation Ted Kowalski
March 12, 2002
12 (Pages 42 to 45)
Esquire Deposition Services [phone]
Page 42
Page 44
1
A. No. By the construction -- or by
I
that stream reach?
2
the decree of an instream flow, the board does
2
A. That's not correct.
3
not have an ownership interest in the stream
3
Q. If it doesn't have an ownership
4
channel.
4
interest in that stream reach, then what is the
5
Q. (BY MR. PORZAK) What about the
5
basis of the claim of injury?
6
adjacent land?
6
A. The claim -- X
N
7
A. No, that's --
7
X
:T
MR. CYRAN: Objection to form. X
8
Q. Okay. What about the airspace above
8
A. The basis for the claim of injury is
9
the channel?
9
a thwarting, if you will, of the CWCB's water
10
MR. CYRAN: Objection, foundation.
10
right because it seeks a use which prevents the
11
A. No.
11
CWCB from obtaining the beneficial use for which
12
Q. (BY MR. PORZAK) If the CWCB does
12
it sought its decree.
13
not have any such ownership interest, what is
13
Q. (BY MR. PORZAK) If the CWCB had an
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the factual basis of its claim of injury, then,
14
instream flow on a given stream reach, and
15
in the Case No. 00CW259?
15
someone sought to modify that stream channel so
16
A. Claim of injury is to the water
16
as to create an unnatural environment, would
17
right itself.
17
X
is it the position that the CWCB could prevent
18
Q. Is there less water flowing through
18
such a change?
19
the reach of Gore Creek in which the white-water
19
MR. CYRAN: Objection to foundation.
20
course is located post-construction than
20
A. What would be the context in which
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occurred prior to construction of that course?
21
the person seeking to modify the channel
22
A. Not to my knowledge.
22
would -- or destroy the natural environment
23
Q. So there's the same amount of water
23
would be seeking to do that? Would it be in the
24
in Gore Creek in the reach that was decreed in
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context of a water rights application?
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W3637, correct?
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Q. (BY MR. PORZAK) No.
Page 43
Page 45
1
A. That would -- that's my
I
A. I think it would be the CWCB's
2
understanding.
2
position that if it wasn't in the context of a
3
Q. If there's the same amount of water,
3
water rights application, if there was some
4
how can there be injury to the CWCB's instream
4
other process whereby the person seeking to
5
flow?
5
change the stream channel had to go through,
6
A. Because the water right seeks to --
6
that it would be appropriate for the board to
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seeks a right that eliminates, if you will, the
7
make the decision-maker in that instance aware
8
natural environment.
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of the board's instream flow decree to preserve
9
Q. So is it then the CWCB's contention
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the natural environment to a reasonable degree
10
that any activity in an instream flow reach that
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and to seek terms and conditions to assure that
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would alter the natural environment is an injury
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the board's water right is not injured to that
12
to the CWCB's instream. flow?
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regard.
13
MR. CYRAN: Objection to foundation.
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Q. Water right is for a -- the -- an
14
A. No, that's not the CWCB's
14
instream flow is for a volume of water, correct?
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contention.
15
A. It's for a flow of water.
16
Q. (BY MR. PORZAK) That's your
16
Q. Okay. If the flow of water has not
17
contention in this case, is it not?
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changed in terms of an amount, does the CWCB
18
A. No, it's not. It's our contention
18
have any basis for claiming injury?
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that if a water right seeks a use which destroys
19
MR. CYRAN: Objection to form. I
20
the natural environment, which is what the CWCB
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think we went over this.
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has a water right to preserve, that that water
21
A. I believe I stated that the board
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right cannot be granted because it is injurious
22
can argue injury, yes.
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to the CWCB's instream flow.
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Q. (BY MR. PORZAK) All right. If the
24
Q. So the underpinning of that claim is
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CWCB does not have an ownership interest in the
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that the CWCB has some ownership interest in
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stream channel or the airspace above the channel
12 (Pages 42 to 45)
Esquire Deposition Services [phone]