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Application for Water Rights of the Eagle River Water & Sanitation March 12, 2002 Ted Kowalski Page 106 Page 108 1 efficient practices for which the use is sought, 1 except for the caveats that I stated before, 2 so if a water court were to find that 50 cfs is 2 incidental uses and post -216. 3 an amount that's reasonable and appropriate to 3 Q. Irregardless of what that 4 accomplish the purposes for boating or 4 recreational use of water entails? 5 recreational purposes, and not 400, then that 5 A. You mean what -- what do you mean by 6 would be the appropriate amount under the law. 6 that? 7 Q. (BY MR. PORZAK) Do you have any 7 Q. Do you distinguish between types of 8 factual basis to know whether or not 50 second 8 recreational use of water? 9 feet will provide the same recreational 9 A. I would distinguish between 10 experience at the Vail white -water course as 10 in- channel and out -of- channel recreational uses. 11 would 400 cubic feet of water? 11 I guess I'm not clear about the question 12 MR. CYRAN: Objection to form. 12 exactly. I'm sorry. 13 A. The only evidence that I would have 13 Q. Let me ask a different way. Is it 14 would be my own physical observations of the 14 the position of the Colorado Water Conservation 15 course at a couple of difficult flows or several 15 Board that if the Town of Breckenridge had 16 different flows, as well as the photos and 16 diverted 500 cubic feet of water outside the 17 videotape that I've taken with regard to that. 17 existing stream channel and run it through a 18 Q. (BY MR. PORZAK) But how can you 18 duplicate white - water course parallel to the 19 determine recreational experience based on 19 existing town course, that that would be a valid 20 photos? 20 diversion of water? 21 A. I think the water court can review 21 MR. CYRAN: Objection on foundation 22 those photos at the different flow levels and 22 and form. 23 make a decision, determination. 23 A. I believe that it's unclear in the 24 Q. Would you agree that merely watching 24 statute as to whether or not that would be a 25 a kayaker is different than actually being the 25 valid appropriation of water, but it's the Page 107 Page 109 1 kayaker -- 1 CWCB's contention that it would have to be 2 A. I would. 2 impounded to get a recreational use. 3 Q. -- in terms of a recreational 3 Q. When did the Colorado Water 4 experience? 4 Conservation Board adopt this position? 5 MR. CYRAN: Objection, foundation. 5 A. I don't know specifically. 6 A. That's right. Watching and doing 6 Q. Did it specifically adopt this 7 are different. 7 position? 8 Q. (BY MR. PORZAK) And you have no 8 A. I believe this position was stated 9 knowledge as to what flow rates accomplish what 9 in the Golden briefs that were submitted to the 10 recreational experience from the standpoint of a 10 Colorado Supreme Court, so, yes, I believe it 11 doer? 11 did adopt that position, at least with regard to 12 A. Just testimony that Mr. Lacy has 12 that case. 13 provided, as well as Mr. Martellaro. 13 Q. Now, you conducted no independent 14 Q. Your interpretation of testimony 14 research on the hydrology or water rights of 15 Mr. Lacy has provided, correct? 15 Gore Creek or the Blue River; is that correct? 16 MR. CYRAN: Objection. 16 A. That's right. 17 A. Well, the testimony stands for 17 Q. And you've never designed a 18 itself. 18 white -water course; is that correct? 19 Q. (BY MR. PORZAK) It sure does. 1 19 A. No, I never have. 20 just want to make sure I understand this. Is it 20 Q. You've never constructed a 21 the CWCB's position that you must have an 21 white -water course; is that correct? 22 impoundment of water to use water for recreation 22 A. That's correct. 23 purposes? 23 Q. You've never operated a white -water 24 A. I believe that is our position, and 24 course, correct? 25 I think it's stated in our most recent motion, 25 A. I've gone through white -water 28 (Pages 106 to 109) Esquire Deposition Services (303) 316 -0330