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
March 12, 2002
Ted Kowalski
Page 70
Page 72
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reach is a natural environment?
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as an indicator species for the natural
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A. I don't have any expertise with
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environment that exists, but that's not the only
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regard to that.
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natural environment that the board's water right
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MR. CYRAN: How are you doing on
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sought to protect or preserve.
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your -- are you -- not trying to jump, but I was
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Q. What was the -- other than the cold
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wondering if you're getting --
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water fishery, what was the other basis of
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MR. PORZAK: Let's take a break.
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the -- of CWCB instream flow on Gore Creek, to
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MR. CYRAN: It's been two hours.
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your knowledge?
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MR. PORZAK: Let's take a break.
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A. To my knowledge, I believe that
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(A break was taken.)
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there were bugs associated with that stream,
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Q. (BY MR. PORZAK) Would you agree
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there was plant life, riparian, vegetation that
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that the natural environment consists of the
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were supported by that water, that were part of
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entirety of the flow of a stream?
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the natural environment for which the CWCB
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MR. CYRAN: Objection to foundation.
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sought a water right.
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A. I don't know that I would agree with
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Q. Do you know whether or not the Vail
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that.
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white -water course has adversely impacted the
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Q. (BY MR. PORZAK) What would you
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cold water fishery on Gore Creek?
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disagree with about that statement?
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A. I do not know that.
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A. I think that a natural environment
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Q. Do you know whether or not the Vail
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is supported and can be supported by a flow, and
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white -water course has adversely impacted the
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I don't believe that a natural environment
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bug or plant life on Gore Creek?
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requires the entirety of a flow of a stream to
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A. I don't know that.
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support that natural environment.
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Q. Do you know if the Vail white -water
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Q. If there is an alteration of the
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course has caused any injury to the natural
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natural environment within an instream flow
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environment on Gore Creek?
Page 71
Page 73
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reach for purposes of acquiring a water right,
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A. What I know would be based upon
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is it the CWCB's position that such an
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statements made by experts identified by the
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alteration would be injury to the instream flow?
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Eagle River Water & Sanitation District that
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MR. CYRAN: Objection to foundation.
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there is no longer a natural environment on the
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A. Not necessarily.
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creek, and to the extent that those statements
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Q. (BY MR. PORZAK) And what is a
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are true, then there would be injury to the
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situation where such an alteration of the
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CWCB's instream flow rights, yes.
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natural environment would not be injury to the
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Q. If there is unappropriated water
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instream flow?
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available within an instream flow reach, is
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MR. CYRAN: Object to foundation,
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there injury to an instream flow if there is any
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and form.
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alteration to the natural environment within
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A. I believe a situation where someone
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that instream flow reach?
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would install a headgate, let's say takes out a
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MR. CYRAN: Objection to form and
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tree, that may alter the natural environment,
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foundation.
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but it does not destroy the natural environment
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A. I think there could be injury if
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for which the CWCB sought its right, and
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that alteration destroys the natural environment
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therefore it would not be injury.
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to which the CWCB's decree preserves.
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Q. (BY MR. PORZAK) What did the CWCB
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Q. (BY MR. PORZAK) Even if there is
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seek its right for on Gore Creek?
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unappropriated water available?
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A. To preserve the natural environment
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A. Even if there's unappropriated
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to a reasonable degree.
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water, if the water right destroys the natural
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Q. What was the natural environment
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environment such that there is no longer a
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that it was seeking to preserve? Was it a cold
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natural environment, that would be injury.
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water fishery?
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Q. So then an instream flow water right
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A. The board uses a cold water fishery
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of the CWCB can, in effect, be for more than the
19 (Pages 70 to 73)
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