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 114
Page 116
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A. I don't know that that's our
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opinion, yes.
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contention, but I believe that certainly the
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Q. And do you have any expertise that
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Breckenridge course might consume water.
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would provide a basis for such a disagreement?
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Q. And what's the factual basis of
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A. Perhaps as it relates to the law,
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that?
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yes.
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A. To the extent that water is exposed
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Q. You never field-inspected the stream
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that otherwise was not exposed, that could be a
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reaches of the Breckenridge and Vail courses
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consumption of water that exists.
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prior to course construction with these
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Q. Do you know whether or not that, in
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particular cases in mind; is that correct?
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fact, occurs?
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A. That's correct.
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A. It's my understanding that the
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Q. Do you have any knowledge one way or
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Breckenridge course exists on a portion of the
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another whether or not 500 cfs is the minimum
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river that used to be underground, so to the
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amount of water necessary to provide the
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extent that that may have occurred, may have
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intended use of the Breckenridge white-water
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existed, it -- I have some limited knowledge.
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course?
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Q. Did the construction of the
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MR. CYRAN: Objection, foundation
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Breckenridge white-water course cause the water
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never mind. Withdrawn.
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to flow above ground when it did not --
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A. I have some knowledge that 500 cfs
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A. Prior to that time?
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is not the minimum amount necessary to
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Q. -- prior to course construction?
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accomplish the purposes identified in
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A. I --
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Breckenridge's application.
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MR. CYRAN: Objection, foundation.
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Q. (BY MR. PORZAK) And what knowledge
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A. I believe it was done as part of the
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is that?
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river restoration in Breckenridge, and not
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A. My physical observations of the
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specifically with regard to this course, at the
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course at different flow levels, and I think
Page 115
Page 117
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same time that course was built.
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that would be it.
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Q. (BY MR. PORZAK) And you do not know
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Q. And how does that observation tell
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at what flow rates any of the course structures
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you whether or not that's the minimum amount of
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are overtopped clear to the banks; is that
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water necessary to provide the intended use?
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correct?
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A. For example, on the Breckenridge
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A. That's not entirely correct.
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course, I viewed kayakers boating at a flow of
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Q. What's not correct about it?
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less than 500 cfs.
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A. I believe I've offered testimony
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Q. So it's just whether or not there's
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earlier that I believed that the structures were
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boating is the standard?
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overtopped at certain flow levels that I had
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MR. CYRAN: Objection, foundation.
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observed the courses at.
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Q. (BY MR. PORZAK) According to your
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Q. But you've never observed the course
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opinion?
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extensions for the Breckenridge course; is that
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A. As I've said before, I think the
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correct?
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board could argue that an amount that's
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A. That's correct.
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reasonable and appropriate would be could be
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Q. Would you agree that, to determine
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the amount that allows for boating or and it
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the amount of flow controlled, one would have to
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could also be where white-water features appear,
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measure flow on a case-by-case, structure-by-
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assuming that there is control.
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structure basis?
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Q. Do you believe that the duty of
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MR. CYRAN: Objection, foundation.
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water for recreational in-channel diversion is
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A. Not necessarily.
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the minimum amount necessary to provide the
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Q. (BY MR. PORZAK) If that were the
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maximum recreational experience?
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opinion of Mr. Knox, would -- do you then
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A. I don't know that I would
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disagree with Mr. Knox's opinion?
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characterize it that way.
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A. I think I would disagree with that
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Q. Why not?
30 (Pages 114 to 117)
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