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Application for Water Rights of the Eagle River Water & Sanitation <br />March 12, 2002 <br />Ted Kowalski <br />Page 10 <br />Page 12 <br />1 <br />on the -- whether these structures actually <br />1 <br />Q. (BY MR. PORZAK) So the basis, then, <br />2 <br />control the water. I believe that was your <br />2 <br />of your opinion that these structures do not <br />3 <br />question. <br />3 <br />divert water is a legal conclusion; is that <br />4 <br />Q. Do you intend to offer any lay <br />4 <br />correct? <br />5 <br />opinions with respect to any of the issues that <br />5 <br />A. I don't believe it's a legal <br />6 <br />I just articulated? <br />6 <br />conclusion, but it's based in part on the law, <br />7 <br />A. I may be asked to provide lay <br />7 <br />yes. <br />8 <br />opinions. It's really a question of my <br />8 <br />Q. What is the factual basis for your <br />9 <br />attorneys to decide that, but -- <br />9 <br />opinion that these structures do not divert <br />10 <br />Q. Let me ask this. Do you have any <br />10 <br />water? <br />11 <br />lay opinions with respect to the construction, <br />11 <br />A. The factual basis that I've looked <br />12 <br />design, and/or operation of the subject <br />12 <br />at, the structures -- that the structures are in <br />13 <br />white -water courses? <br />13 <br />the stream. I've seen the structures at <br />14 <br />A. I have an opinion that -- a couple <br />14 <br />different flows, and the streams tend to flow in <br />15 <br />of opinions with regard to specifically the <br />15 <br />the same way within the same channel as they did <br />16 <br />structure and design of these structures or <br />16 <br />prior to the construction of those structures. <br />17 <br />these boat chutes. <br />17 <br />Q. Did you examine the stretch of the <br />18 <br />Q. What are those opinions? <br />18 <br />river wherein the Breckenridge and Vail courses <br />19 <br />A. One opinion is that the structures <br />19 <br />are located prior to the construction of either <br />20 <br />do not divert the water. One opinion. <br />20 <br />of those two courses? <br />21 <br />Another opinion is that these <br />21 <br />A. On the Breckenridge one, yes, I <br />22 <br />structures do not impound the water, and <br />22 <br />examined it a number of times. The Vail one, I <br />23 <br />therefore are not able to be decreed for <br />23 <br />did examine it at least on a couple of <br />24 <br />recreational purposes. <br />24 <br />occasions, but -- yeah. <br />25 <br />Another opinion is that these <br />25 <br />Q. Okay. Let's take the Breckenridge <br />Page 11 <br />Page 13 <br />1 <br />structures are instream flows, contrary to state <br />1 <br />course. When specifically did you examine the <br />2 <br />water law. <br />2 <br />course prior to construction? <br />3 <br />And another opinion is that these <br />3 <br />A. I can't give you exact dates, but at <br />4 <br />structures do not provide or are not reasonably <br />4 <br />various times from 1992 until they were <br />5 <br />efficient and not wasteful to meet the <br />5 <br />constructed. <br />6 <br />reasonable and appropriate -- excuse me -- to <br />6 <br />Q. How did -- how did you know where <br />7 <br />serve the reasonable and appropriate uses for <br />7 <br />the course was to be constructed in 1992? <br />8 <br />which they are seeking decrees. <br />8 <br />A. I didn't know where the course was <br />9 <br />Q. Okay. Let's take the first opinion, <br />9 <br />going to be constructed, but I had examined the <br />10 <br />that the structures do not divert water. What <br />10 <br />location where the structures were put before <br />11 <br />is the basis of that opinion? <br />11 <br />they were put there. I didn't know they were <br />12 <br />A. Well, there was -- <br />12 <br />going to be put there, but I had seen it and <br />13 <br />MR. CYRAN: Objection, foundation. <br />13 <br />examined it, if you will. <br />14 <br />MR. PORZAK: Well, that's what I'm <br />14 <br />Q. What did the examination consist of? <br />15 <br />asking is what is the basis of his opinion. <br />15 <br />A. Just a physical observation, looking <br />16 <br />A. There was a decision rendered, a <br />16 <br />at the site. <br />17 <br />Fort Collins decision you're familiar with, and <br />17 <br />Q. So you looked at the site at a time <br />18 <br />after Fort Collins was initially filed, there <br />18 <br />when you didn't know that the issue of diversion <br />19 <br />was a statute passed, Senate Bill 212, and 212 <br />19 <br />and control would ever be one that you would <br />20 <br />provided that only the CWCB can obtain a water <br />20 <br />have to render an opinion on; is that correct? <br />21 <br />right or appropriate a water right for instream <br />21 <br />A. That's correct. <br />22 <br />flow purposes for any purpose whatsoever, and my <br />22 <br />Q. Did you take any measurements when <br />23 <br />opinion is that these -- the water rights sought <br />23 <br />you were observing the Breckenridge stream <br />24 <br />in these two applications violate that statute <br />24 <br />reach? <br />25 <br />because they are instream uses. <br />25 <br />A. No, I took no measurements. <br />4 (Pages 10 to 13) <br />Esquire <br />Deposition Services <br />(303) 316 -0330 <br />