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 22
Page 24
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opinions.
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19 excuse me. It did have an appropriation
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Q. You indicated that the basis of your
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date that preceded, came before, the enactment
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opinion that the structures do not divert water
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of Senate Bill 212.
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is based on your understanding of the Fort
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Q. How is it that a water right that
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Collins case and Senate Bill 212; is that a fair
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was not initiated until after Senate Bill 212
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statement?
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would have a priority date that predated Senate
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A. In part, yes.
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Bill 212?
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Q. What is the other part that I'm
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MR. CYRAN: Objection, foundation.
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missing in that summary?
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A. I believe I said that it had an
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(The last question was read back.)
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appropriation date that preceded it, not a
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A. The other part would be my physical
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priority date, but can you say
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observation of the Breckenridge and the Vail
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Q. (BY MR. PORZAK) How is it that an
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courses.
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appropriation that was not filed until after
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Q. The Fort Collins decision was
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Senate Bill 212 would have a priority date that
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rendered after the enactment of Senate Bill 212,
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predates Senate Bill 212?
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correct?
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MR. CYRAN: Same objection to
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A. The Supreme Court decision?
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foundation.
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Q. Yes.
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A. Well, because it was filed prior to
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A. Yes.
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Senate Bill 212.
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Q. And is it your opinion that the Fort
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Q. (BY MR. PORZAK) But it wasn't filed
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Collins decision did not deal with Senate Bill
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prior to Senate 212, Senate Bill 212, was it?
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212?
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A. I believe it was filed prior to
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A. It's my opinion that Senate Bill 212
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Senate Bill 212.
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was enacted after Fort Collins had appropriated
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Q. The change in the appropriation was
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its water right, and therefore it did not apply
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filed prior to Senate Bill 212?
Page 23
Page 25
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to the Fort Collins case, because that would
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A. The change in the appropriation was
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have been an illegal retroactive legislation.
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filed after 212, but the original appropriation
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Q. Are you aware that Fort Collins
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was filed prior to 212.
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amended its application?
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Q. The original appropriation was
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A. Yes.
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withdrawn, was it not?
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Q. And when did it amend its
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A. I don't believe it was withdrawn.
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application?
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It was amended or changed, but I believe they
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A. I don't know the specific date.
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had an appropriation date that preceded 212.
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Q. Are you aware that it amended its
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Q. You indicate that the structures do
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application after Senate Bill 212 --
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not impound water; is that correct? And
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A. I'm --
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that's -- we're talking about the Breckenridge
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Q. -- was enacted into law?
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course now?
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A. I'm aware of that.
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A. Yes.
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Q. And, in fact, Fort Collins changed
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Q. And what is the basis of that
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its appropriation, did it not?
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opinion?
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A. Yes. It changed its appropriation
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A. Just my physical observation of the
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in part, yes.
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course.
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Q. Well, in major part. It changed the
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Q. Is it the position of the Colorado
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use to which it sought a decree, correct?
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Water Conservation Board that there can be no
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A. That's correct.
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recreational use of water unless the water is
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Q. Is it your opinion that amendment
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physically impounded?
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related back to the original filing which
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A. Prior to Senate Bill 216?
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predated Senate Bill 212?
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Q. Prior to Senate Bill 216.
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A. I believe that the final decree
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A. Yes, unless it's an incidental use.
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entered in the Fort Collins case did include
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Q. So if prior to Senate Bill 216,
7 (Pages 22 to 25)
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