Concerning the Application of: Busk-Ivanhoe, Inc. July 26, 2013 - Volume IV DISTRICT COURT, WATER DIVISION 2 Pueblo County, Colorado 320 West 10th Street Pueblo, CO 81003 Case No. 09CW142 Division 2 ________________________________________________ TRANSCRIPT OF PROCEEDINGS Volume IV July 26, 2013 ________________________________________________ CONCERNING THE APPLICATION OF: BUSK-IVANHOE, INC., A COLORADO CORPORATION, IN ADAMS, ARAPAHOE, CHAFFEE, DOUGLAS, JEFFERSON, LAKE, PARK, PITKIN, AND WELD COUNTIES, COLORADO _________________________________________________ PURSUANT TO AGREEMENT and the Colorado Rules of Civil Procedure, the Trial of the within proceedings was taken on Friday, July 26, 2013, commencing at 8:36 a.m. at the Pueblo County Courthouse, 320 West 10th Street, Pueblo, Colorado 81003, Courtroom G, before The Honorable Larry Schwartz, District Court Judge, and Mary Susan Parker, Registered Merit Reporter, Certified Realtime Reporter, and Colorado Notary Public. Mile High Court Reporting and Video, Inc. 303-202-0210 contact@milehighreporting.com Concerning the Application of: Busk-Ivanhoe, Inc. July 26, 2013 - Volume IV 712 1 APPEARANCES: 2 ON BEHALF OF THE APPLICANT: 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 JOHN M. DINGESS, ESQ. AUSTIN HAMRE, ESQ. RYAN P. McLANE, ESQ. Duncan, Ostrander & Dingess, P.C. 3600 South Yosemite Street, Suite 500 Denver, CO 80237 ON BEHALF OF OPPOSER HIGH LINE CANAL COMPANY: ROBERT F.T. KRASSA, ESQ. Krassa & Miller, LLC 2737 Mapleton Avenue, Suite 103 Boulder, CO 80304 ON BEHALF OF OPPOSERS COLORADO RIVER WATER CONSERVANCY DISTRICT, BASALT WATER CONSERVANCY DISTRICT, AND EAGLE COUNTY BOARD OF COUNTY COMMISSIONERS: DAVID C. HALLFORD, ESQ. SCOTT A. GROSSCUP, ESQ. Balcomb & Green, P.C. P.O. Drawer 790 Glenwood Springs, CO 81601 ON BEHALF OF OPPOSER BOARD OF COUNTY COMMISSIONERS OF PITKIN COUNTY: PATRICIA M. DeCHRISTOPHER, ESQ. ANNE D. BENSARD, ESQ. Moses, Wittemyer, Harrison & Woodruff, PC 1002 Walnut Street, Suite 300 Boulder, CO 80306 ON BEHALF OF OPPOSERS GRAND VALLEY WATER USERS ASSOCIATION, ORCHARD MESA IRRIGATION DISTRICT, AND UTE WATER CONSERVANCY DISTRICT: KIRSTEN KURATH, ESQ. Williams, Turner & Holmes, P.C. 200 North 6th Street, P.O. Box 338 Grand Junction, CO 81502 25 Mile High Court Reporting and Video, Inc. 303-202-0210 contact@milehighreporting.com Concerning the Application of: Busk-Ivanhoe, Inc. July 26, 2013 - Volume IV 713 1 APPEARANCES (Continued): 2 ON BEHALF OF THE STATE OF COLORADO AND DIVISION ENGINEERS: 3 4 5 6 7 8 9 10 11 KATHERINE A.D. RYAN, ESQ. Assistant Attorney General State of Colorado Department of Law Natural Resources and Environment Water Resources Ralph L. Carr Colorado Judicial Center 1300 Broadway, 7th Floor Denver, CO 80203 ON BEHALF OF THE COLORADO RIVER DISTRICT: JASON V. TURNER, ESQ. Associate Counsel 201 Centennial Street, Suite 200 Glenwood Springs, CO 81602 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Mile High Court Reporting and Video, Inc. 303-202-0210 contact@milehighreporting.com Concerning the Application of: Busk-Ivanhoe, Inc. July 26, 2013 - Volume IV 714 1 I N D E X 2 EXAMINATION OF MICHAEL SAYLER: 3 Continued Direct by Mr. Hallford 717 4 Voir Dire by Mr. Krassa re WSO Exhibit 9-P 728 Voir Dire by Mr. Krassa re WSO Exhibit 9-S 738 Voir Dire by Mr. Krassa re WSO Exhibit 9-T 742 Voir Dire by Mr. Krassa re WSO Exhibit 9-V 749 Voir Dire by Mr. Krassa re WSO Exhibit 9-I 755 Cross by Mr. Krassa 838 Cross by Mr. Hamre 872 Redirect by Mr. Hallford 939 By the Court 948 5 6 7 8 9 10 11 12 13 14 15 PAGE 16 17 18 19 20 21 22 23 24 25 Mile High Court Reporting and Video, Inc. 303-202-0210 contact@milehighreporting.com Concerning the Application of: Busk-Ivanhoe, Inc. July 26, 2013 - Volume IV 715 INDEX OF EXHIBITS 1 2 WSO EXHIBITS INITIAL REFERENCE ADMITTED 3 9 824 4 9-B 752 5 9-F 759 6 9-I 752 7 9-L 798 8 9-P 719 730 9 9-Q 719 732 10 9-R 719 735 11 9-S 719 741 12 9-T 719 745 13 9-U 719 747 14 9-V 719 750 15 9-W 730 16 10 833 836 17 10-A 798 798 18 10-B 791 792 19 10-C 805 806 20 80 812 21 85 768 22 90 800 801 23 91 782 782 24 92 787 790 836 757 25 Mile High Court Reporting and Video, Inc. 303-202-0210 contact@milehighreporting.com Concerning the Application of: Busk-Ivanhoe, Inc. July 26, 2013 - Volume IV 716 INDEX (Continued) 1 2 APPLICANT'S EXHIBITS INITIAL REFERENCE ADMITTED 3 A-121 836 836 4 A-122 836 836 5 A-145 750 751 6 A-211 914 7 A-265 770 8 A-352 928 772 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Mile High Court Reporting and Video, Inc. 303-202-0210 contact@milehighreporting.com Concerning the Application of: Busk-Ivanhoe, Inc. July 26, 2013 - Volume IV 717 WHEREUPON, the following proceedings 1 2 were taken: THE COURT: 3 4 2009CW142, the Application of Busk-Ivanhoe, Inc. Mr. Sayler, if you would come back 5 6 We're back on the record on forward, and you're still under oath, sir. 7 THE WITNESS: 8 THE COURT: 9 Mr. Hallford? 08:36 10 MR. HALLFORD: Okay. Please be seated. 11 THE COURT: 12 MR. HALLFORD: Good morning, Your Honor. Good morning. For the information of 13 the Court and Counsel, we believe we are 14 approximately one-half completed with Mr. Sayler's 15 Direct as of this morning. 16 THE COURT: 17 MR. HALLFORD: 18 Okay. And that we should conclude before your morning break. THE COURT: 19 Okay, thank you. DIRECT EXAMINATION (Continued) 08:37 20 21 BY MR. HALLFORD: 22 Q. Good morning, Mr. Sayler. 23 A. Good morning. 24 Q. Let's back up just a bit. 25 We were beginning to discuss the historical use analysis Mile High Court Reporting and Video, Inc. 303-202-0210 contact@milehighreporting.com Concerning the Application of: Busk-Ivanhoe, Inc. July 26, 2013 - Volume IV 718 1 that you conducted in forming your opinions and, 2 again, why was this analysis conducted? 3 A. For this case, we looked at the 4 historical use of the Rocky Ford High Line simply to 5 determine how often the Rocky Ford High Line had 6 excess or surplus water supplies adequate to meet 7 its irrigation demands without the Busk-Ivanhoe 8 imported water. 9 08:37 10 11 Q. And was this an effort to quantify your consumptive use or return flows associated with the High Line Canal Company's native basin water rights? 12 A. No, it was not. 13 Q. And do you have any indication or view 14 whether Mr. Bethel disagrees with the report or the 15 analysis you will present? 16 A. Mr. Bethel used the excess values or 17 surplus values that we determined in our historical 18 use analysis in Table 1 of his rebuttal report. 19 think he testified to that, so, yes, he did use that 08:38 20 analysis. 21 Q. I And specifically the analysis is 22 portrayed in Appendix A to your March 2013 report, 23 correct? 24 A. Correct. 25 Q. Through exhibits denominated WSO 9-P Mile High Court Reporting and Video, Inc. 303-202-0210 contact@milehighreporting.com Concerning the Application of: Busk-Ivanhoe, Inc. July 26, 2013 - Volume IV 719 1 through 9-V? 2 A. That's correct. 3 Q. And, again, this is what you called a 4 water budget analysis, and you explained that 5 concept to the Court yesterday, correct? A. 6 Yes. MR. HALLFORD: 7 Your Honor, I would point 8 out, as we found out yesterday, that Exhibit 9-P in 9 your list is incorrectly identified in the 08:39 10 11 right-hand corner as "90-P." We believe the other documents, Q through V, are correctly identified. 12 This 9-P, the incorrectly stamped one or 13 denominated one, is also WSO 185 by Bates number and 14 we can make whatever correction the Court wishes if 15 you admit this page at the appropriate time, Your 16 Honor. 17 THE COURT: 18 MR. HALLFORD: 19 THE COURT: 08:39 20 21 it for the record. Q. All right. We apologize. I think you have clarified Thank you. (By Mr. Hallford) Looking at 22 Exhibit 9-P, Mr. Sayler, can you explain how this 23 was created? 24 25 A. Yes. This is Table A-1 of our March 2013 engineering report and it summarizes the -- it Mile High Court Reporting and Video, Inc. 303-202-0210 contact@milehighreporting.com Concerning the Application of: Busk-Ivanhoe, Inc. July 26, 2013 - Volume IV 720 1 states here in the title assumptions -- another way 2 to put it would be the input parameters that we used 3 in our water budget analysis, and I can walk through 4 it if you would like. 5 6 Q. We would like to know the basis for the various input parameters -- 7 A. Sure. 8 Q. -- if you could walk through those. 9 08:40 10 11 I can do that one by one or you can just move from item to item, depending on counsel's desire. A. I'd be glad to just walk through it and 12 say where I got each of the data points from, if you 13 would like. 14 Q. Please do. 15 A. The first box here is just showing the 16 study period that we used for our historical use 17 analysis, 1927 to '86. 18 records go back to 1925, but there was not a good 19 record of Rocky Ford High Line diversions in 1926 08:41 20 21 22 Again, the Busk-Ivanhoe so, rather than start in 1925 and then have a missing year, we just started this analysis in 1927. Then the climate station is just 23 indicating what climate data that we used in the 24 water budget analysis and the climate data is the 25 temperature and the precipitation data that are used Mile High Court Reporting and Video, Inc. 303-202-0210 contact@milehighreporting.com Concerning the Application of: Busk-Ivanhoe, Inc. July 26, 2013 - Volume IV 721 1 2 to determine the crop irrigation water requirements. And for the record, Rocky Ford High 3 Line -- we believe that the Rocky Ford II Southeast 4 Climate Station is a good representative climate 5 station with a long-term period of record. 6 Going down here to the efficiencies, the 7 ditch and the canal loss efficiency, that parameter 8 is a measure of how much water -- how much of the 9 water that was diverted at the river head gate 08:42 10 actually was lost through seepage or evaporation 11 within the main canal and the laterals of the Rocky 12 Ford High Line. 13 And we used, in this case, we used a 14 25 percent factor, meaning that 25 percent of the 15 water diverted at the river head gate did not get 16 delivered to the farms and was lost through system 17 canal losses, and the source of that component, that 18 25 percent factor, was an analysis that Mr. Bethel 19 did in 2003 for a substitute water supply plan that 08:42 20 21 22 was submitted for the City of Aurora for some of their Rocky Ford High Line shares. And so I reviewed his analysis there and 23 thought that the 25 percent factor was reasonable. 24 The maximum farm efficiency factor of 65 percent -- 25 that is a -- that's, out of the water that's Mile High Court Reporting and Video, Inc. 303-202-0210 contact@milehighreporting.com Concerning the Application of: Busk-Ivanhoe, Inc. July 26, 2013 - Volume IV 722 1 delivered to the farm, that's a measure of the 2 percentage, the maximum percentage of the water that 3 actually can be stored in the soil moisture or 4 consumed by the crop. 5 It's a function of a lot of different 6 things in terms of type of irrigation, the slope of 7 the lands, the type of soils. 8 factor is a factor that we use that is fairly common 9 for systems such as the Rocky Ford High Line for a 08:43 10 11 This 65 percent maximum farm efficiency. But in this case it's the parameter 12 that's used in the HI Model, for example, the 13 Hydrological Institutional Model of the Arkansas 14 River Basin. 15 percentage that was used by Mr. Bethel in his SWSP 16 analysis in 2003. 17 It's also, I believe, the same The soil parameters -- this is just, 18 within the water budget, what happens is you take 19 the amount of water diverted. You deduct the 08:44 20 25 percent for the ditch and canal loss, and the 21 rest of it goes into what is really analogous of 22 like a bank account on a monthly time step. 23 That's the water that's delivered to the 24 fields and can be stored in the soil moisture 25 reservoir within the fields, so we have to have a Mile High Court Reporting and Video, Inc. 303-202-0210 contact@milehighreporting.com Concerning the Application of: Busk-Ivanhoe, Inc. July 26, 2013 - Volume IV 723 1 way of identifying how big the bank account is or 2 the soil moisture reservoir is, and also to be able 3 to tell them when the soil moisture reservoir fills 4 up and spills. And so, in this case, we looked at the 5 6 soil parameters for the Rocky Ford High Line and we 7 looked at the values that are used in the HI Model 8 and came up with an available water capacity of .17, 9 which means that, on a volume basis, if you have a 08:45 10 block of soil, a cube of soil, 17 percent of that 11 cube can hold water and retain that water for crop 12 consumption. And that's the parameter that's shown 13 14 right here that we used within the water budget 15 analysis. 16 Q. 17 18 19 08:45 20 The second parameter that's shown -Excuse me. And what was the source of that parameter? A. That .17 value -- we verified it by looking at soil data ourselves and think it's a good, representative number for the Rocky Ford High 21 Line, but it's also the average weighted value 22 within the HI Model for the Rocky Ford High Line. 23 The winter precipitation to SMR, which 24 is -- "SMR" is Soil Moisture Reservoir. That's a 25 parameter that is input into the water budget that Mile High Court Reporting and Video, Inc. 303-202-0210 contact@milehighreporting.com Concerning the Application of: Busk-Ivanhoe, Inc. July 26, 2013 - Volume IV 724 1 tells us how much of the precipitation that fell at 2 our climate station here in the winter months could 3 actually be made available and stored within the 4 Soil Moisture Reservoir. And we used a factor of 70 percent, 5 6 meaning 70 percent of the precipitation that fell 7 outside of the irrigation season would go into the 8 Soil Moisture Reservoir and be available for the 9 crop use the subsequent irrigation season, and that 08:46 10 70 percent factor is -- that's a common factor that 11 we use for changes of use and water budget analyses, 12 and that's the derivation of that number. 13 Q. Okay. 14 A. Then this final table deals with the 15 irrigated acreage and what we call the crop mix, 16 what crops were grown under the Rocky Ford High 17 Line, and for this table or these parameters, we 18 used two different sources. 19 the total acreage that we used is based upon mapping 08:47 20 that was prepared as part of the HI modeling effort. 21 The first source for And from 1911 to 1968, that effort 22 determined there was 23,690 acres diverted -- or 23 excuse me -- irrigated under the Rocky Ford High 24 Line, and then, for the later part, from 1969 to 25 '86, it was determined that there were 22,730 acres. Mile High Court Reporting and Video, Inc. 303-202-0210 contact@milehighreporting.com Concerning the Application of: Busk-Ivanhoe, Inc. July 26, 2013 - Volume IV 725 1 And I would just note that I believe 2 Mr. Bethel testified that, you know, a commonly 3 accepted or thought-of acreage for the Rocky Ford 4 High Line is 22,500, which is based upon 10 acres 5 per share, and these numbers are just slightly 6 higher than that. 7 Then the actual acreage, the total 8 acreage, is broken down by crop in these subsequent 9 columns and the crop mix here is based upon values 08:48 10 that were presented in Mr. Bethel's 2003 substitute 11 water supply plan, but those values were from a 12 survey that was conducted of Rocky Ford High Line 13 shareholders sometime before that 2003 analysis that 14 Mr. Bethel did. 15 That we developed the percentages -- 16 essentially about 9 percent of the total acreage 17 winter wheat, almost 28 percent grain corn, 5-plus 18 percent sorghum, 41 percent of the largest crop, 19 alfalfa, which is not uncommon for the Lower 08:49 20 21 22 Arkansas Valley, almost 14 percent pasture grass, and about 3 percent vegetables. So these values shown on these six 23 primary crops would make up the total irrigated 24 acreage and, by designating how many acres for each 25 crop, we're able to take the climate data and each Mile High Court Reporting and Video, Inc. 303-202-0210 contact@milehighreporting.com Concerning the Application of: Busk-Ivanhoe, Inc. July 26, 2013 - Volume IV 726 1 crop has specific water requirements and, therefore, 2 develop a weighted water requirement or irrigation 3 requirement for the entire ditch based upon the crop 4 mix. Q. 5 Going back, then, what was the basis for 6 utilizing the climate station? 7 Model or the State CU process? A. 8 9 08:49 10 Was that from the HI Well, it's an input parameter that we put into the State CU and the State CU allows us to access the climate data from a number of different 11 climate stations, dependent upon where, you know, 12 where the historic use analysis is that you're 13 doing. And in this case, the Rocky Ford II 14 15 Southeast, we thought, was the most representative 16 station. 17 Q. And the study period was truncated after 18 1986 because of the full acquisition of the 19 Busk-Ivanhoe system water rights by Pueblo and 08:50 20 21 Aurora as of that date? A. That's correct. We only analyzed the 22 historical use through 1986 because our sole purpose 23 of doing this was to determine when the Rocky Ford 24 High Line had excess water during the time that the 25 Busk-Ivanhoe water was being used under the Rocky Mile High Court Reporting and Video, Inc. 303-202-0210 contact@milehighreporting.com Concerning the Application of: Busk-Ivanhoe, Inc. July 26, 2013 - Volume IV 727 1 Ford High Line for irrigation purposes. Q. 2 Does this Exhibit 9-P accurately 3 summarize the input parameters for your water budget 4 analysis? 5 A. Yes, it does. 6 Q. Now, you said you used the State CU 7 Model. That is a State of Colorado tool? 8 A. Yes, it is. 9 Q. When was it developed? 08:51 10 A. I don't recall exactly when it was Do you know? 11 developed. I think I testified yesterday that I 12 think we've been using it for 10 to 15 years. 13 was developed for the State of Colorado and 14 Mr. Bethel was one of the folks that was hired to 15 help develop that model. It And it's a model that we frequently use 16 17 for historical use analyses and that engineers who 18 do water rights analyses frequently use for 19 historical use analyses in my opinion. 08:51 20 21 22 Q. And is it used by the Division Engineer's office? A. The Division Engineer's office itself 23 doesn't typically do historical use analyses, but I 24 can say that we have used the State CU Model in many 25 cases or in many instances and presented that data Mile High Court Reporting and Video, Inc. 303-202-0210 contact@milehighreporting.com Concerning the Application of: Busk-Ivanhoe, Inc. July 26, 2013 - Volume IV 728 1 in cases that the State or the Division Engineer 2 were involved in and the use of the State CU Model 3 in and of itself is accepted. 4 MR. HALLFORD: 5 admission of Exhibit 9-P. 6 MR. HAMRE: 7 MR. KRASSA: 8 No objection, Your Honor. Brief voir dire, Your Honor? THE COURT: 9 Yes, sir. VOIR DIRE EXAMINATION 08:52 10 11 Your Honor, we'd move the BY MR. KRASSA: 12 Q. Good morning, Mr. Sayler. 13 A. Good morning. 14 Q. In regard to the input parameters, I 15 think you testified that you used a number of 16 parameters out of the HI Model which was developed 17 for the Kansas litigation? 18 19 08:52 20 A. I guess I wouldn't say a number of parameters. I used a couple of parameters out of there, although each one of them I would say I 21 independently verified, that I think that they're 22 good and reasonable numbers. 23 Q. Thank you. 24 question. 25 then verify? That was going to be my next So you didn't use any that you didn't Mile High Court Reporting and Video, Inc. 303-202-0210 contact@milehighreporting.com Concerning the Application of: Busk-Ivanhoe, Inc. July 26, 2013 - Volume IV 729 1 A. That's correct. 2 Q. All right. In the text of your report, 3 there is some discussion of determination of duty of 4 water by the West Slope District Court that 5 adjudicated the Busk-Ivanhoe system, 50 acres to the 6 cfs. 7 A. Yes. 8 Q. Do you recall that? 9 A. Yes, I do. 08:53 10 Q. Did you use that as an input parameter 11 in any way in this soil moisture budget? A. 12 No. The soil moisture budget simply 13 used the total amount of water diverted into the 14 canal and did not limit those diversions to one cfs 15 per 50 acres. Q. 16 Okay. And if I understand you 17 correctly, then, all of the parameters that you used 18 are local parameters to the High Line area; is that 19 right? 08:54 20 A. I guess, instead of "local," I might use 21 the word "specific" or "site-specific," and I 22 wouldn't say all of the parameters, but I think the 23 irrigated acreage, the available soil-moisture-water 24 capacity, and the ditch and canal loss as well, as 25 the crop mix, are all specific to the Rocky Ford Mile High Court Reporting and Video, Inc. 303-202-0210 contact@milehighreporting.com Concerning the Application of: Busk-Ivanhoe, Inc. July 26, 2013 - Volume IV 730 1 High Line and might vary with some other ditch 2 somewhat. 3 But, for example, the 65 percent maximum 4 farm efficiency -- I think that's a reasonable value 5 for other similar ditches in terms of a maximum 6 attainable efficiency in the Arkansas Valley. 7 Q. Okay. As long as I'm standing here, 8 possibly jumping ahead to the next tables that 9 you're going to testify to, but if I may, did you 08:55 10 actually run the HI Model as part of your 11 preparation of these exhibits, WSO 9 Papa through 12 Whiskey? 13 A. No. We ran the State CU Model and 14 performed a water budget with a few parameters that 15 are consistent with the HI. 16 Q. Okay. So the only use you made of the 17 HI Model was the parameters that you've just 18 testified to that you verified? 19 A. MR. KRASSA: 08:55 20 21 That's correct. Thank you. No objection, Your Honor. 22 THE COURT: 23 Ms. Ryan? 24 MS. RYAN: 25 THE COURT: Thank you. No objection. All right, WSO 9-P is Mile High Court Reporting and Video, Inc. 303-202-0210 contact@milehighreporting.com Concerning the Application of: Busk-Ivanhoe, Inc. July 26, 2013 - Volume IV 731 1 admitted. DIRECT EXAMINATION (Continued) 2 3 BY MR. HALLFORD: 4 Q. Let's now look at WSO 9-Q. Can you 5 identify and explain this document, and then we will 6 discuss how it was created and what it portrays. 7 A. This is Table A-2 from our March 2013 8 report, and it's a summary of the monthly river 9 head-gate diversions for the Rocky Ford High Line 08:56 10 Canal, and this would be the total amount of water 11 diverted from all sources, in-basin or out-of-basin 12 sources. So, for example, this would include 13 14 Busk-Ivanhoe diversions through the Rocky Ford High 15 Line head gate in this table. 16 Q. Just briefly, is it true for this 17 exhibit and the other water budget exhibits that we 18 will discuss that the same study period, 1927 19 through 1986, is utilized for the reasons you have 08:56 20 stated? 21 A. Yes. 22 Q. So you need not explain that as we go 23 through each table. 24 A. Okay. 25 Q. But identify the sources of information Mile High Court Reporting and Video, Inc. 303-202-0210 contact@milehighreporting.com Concerning the Application of: Busk-Ivanhoe, Inc. July 26, 2013 - Volume IV 732 1 that are then portrayed in 9-Q. A. 2 As I mentioned, this is the total water 3 diverted through the river head gate of the Rocky 4 Ford High Line and it's based upon diversion records 5 obtained from the State Division of Water Resources. MR. HALLFORD: 6 7 Move the admission of 9-Q. 8 MR. HAMRE: No objection, Your Honor. 9 MR. KRASSA: One voir dire question, 08:57 10 Your Honor. 11 THE COURT: 12 MR. KRASSA: 13 Okay. Does this table include deliveries to the High Line of Busk-Ivanhoe water? THE WITNESS: 14 Yes, it does. Those would 15 be part of the total water diverted through the 16 river head gate. MR. KRASSA: 17 Without adjustment for your 18 legal positions regarding storage or non-irrigation- 19 season diversions? THE WITNESS: 08:58 20 21 This is the total diversion through the structure, yes. MR. KRASSA: 22 23 This is raw data? Thank you. No objection, Your Honor. 24 MS. RYAN: 25 THE COURT: No objection. WSO 9-Q is admitted. Mile High Court Reporting and Video, Inc. 303-202-0210 contact@milehighreporting.com Concerning the Application of: Busk-Ivanhoe, Inc. July 26, 2013 - Volume IV 733 Q. 1 (By Mr. Hallford) At the bottom of the 2 table, you summarize your conclusions about the 3 average and other values of diversion, correct? 4 A. That's correct. 5 Q. So you determined what you called a mean 6 and you might want to explain that to the Court. 7 A. Yes. 8 Q. Sometimes you see the word "Average." 9 A. Yes. 08:58 10 Q. "Maximum" and "Minimum" I think we would 11 understand, but a mean diversion of 75,586 acre feet 12 on an annual basis? A. 13 Yes, and for purposes of this table, the 14 mean or the average, I would say, would be the same 15 thing. 16 this period, this 60-year period, 75,586 acre feet 17 was diverted annually at the Rocky Ford High Line 18 head gate. 19 08:59 20 21 22 This is, as you stated, on average, through Q. So this information allows you to know what went into the system for the further steps in a water budget analysis? A. Yes. This would be the input of the 23 available supply that goes into our water budget 24 analysis. 25 Q. Let's move on to WSO 9-R, and, again, Mile High Court Reporting and Video, Inc. 303-202-0210 contact@milehighreporting.com Concerning the Application of: Busk-Ivanhoe, Inc. July 26, 2013 - Volume IV 734 1 would you explain and, I guess, another question, so 2 we not go through it every time, these exhibits that 3 we're talking about, 9-P through 9-V, were all 4 created by Bishop-Brogden Associates and reviewed by 5 you, correct? 6 7 8 9 09:00 10 11 A. Yes, they were all created under my direction and supervision. Q. So 9-R, would you explain to the Court what this is portraying and then briefly the sources of information that are portrayed here. A. This table summarizes what we referred 12 to as the farm head-gate deliveries, the historical 13 farm head-gate deliveries for the Rocky Ford High 14 Line shareholders, so if you recall, with the input 15 parameters that we discussed, we've used a 16 25 percent canal or system loss. And so all that this table is is the 17 18 previous table, the amount of water diverted at the 19 river head gate, reduced by the 25 percent system 09:00 20 21 22 23 24 25 loss, to show how much water was actually delivered to the farms under the Rocky Ford High Line. Q. And what's the basis for the 25 percent loss factor? A. That's the factor that I explained came from -- well, it was also used in Mr. Bethel's 2003 Mile High Court Reporting and Video, Inc. 303-202-0210 contact@milehighreporting.com Concerning the Application of: Busk-Ivanhoe, Inc. July 26, 2013 - Volume IV 735 1 analysis of the Rocky Ford High Line for the Aurora 2 SWSP, and I think it's a reasonable value for a 3 ditch similar to the Rocky Ford High Line. Q. 4 So, at the bottom of this table you 5 have, again, you are showing maximum and minimum and 6 mean or average deliveries to farms on an annual 7 basis? A. 8 9 09:01 10 That's correct. If you recall, the total amount diverted was roughly 75,000, and now we're reducing that by the 25 percent system loss, 11 so on average, the average annual total delivered to 12 the farm head gates under the Rocky Ford High Line 13 is 56,690 acre feet a year. Q. 14 So is the purpose of this calculation to 15 describe the water supply available for irrigation 16 on fields under the system? A. 17 MR. HALLFORD: 18 19 Yes, it is. 9-R. MR. HAMRE: 09:02 20 No objection. 21 MR. KRASSA: 22 MS. RYAN: 23 THE COURT: 24 25 I'd move the admission of Q. No objection. No objection. 9-R is admitted. (By Mr. Hallford) Now let's look at Exhibit WSO 9-S, and would you explain to the Court Mile High Court Reporting and Video, Inc. 303-202-0210 contact@milehighreporting.com Concerning the Application of: Busk-Ivanhoe, Inc. July 26, 2013 - Volume IV 736 1 what 9-S portrays and the sources of information 2 that are portrayed in this document. A. 3 This table shows a summary of the 4 irrigation water requirements, so the previous two 5 tables showed the amount of supply available up to 6 the farm head gate for the Rocky Ford High Line 7 Canal. 8 input that needs to go into the water budget is how 9 much demand is there, how much irrigation, crop- 09:03 10 Now this table shifts over because the other irrigation requirement, is there. And so this table shows a summary in 11 12 acre feet per month of the irrigation water 13 requirements calculated based upon that mix of crops 14 that we previously discussed and the climate data at 15 the weather station that we previously discussed and 16 shows, under a -- if the crops always had all of the 17 water that they could take, this would be how much 18 they would take. 19 Q. 09:03 20 21 22 Could you briefly explain the concept of effective precipitation as referenced in the title and how that is factored into this calculation? A. Sure. I should step back for a minute. 23 When I said this is how much the crops would take, 24 actually, by that, I mean how much they would 25 transpire, how much ET there would be. The crop ET, Mile High Court Reporting and Video, Inc. 303-202-0210 contact@milehighreporting.com Concerning the Application of: Busk-Ivanhoe, Inc. July 26, 2013 - Volume IV 737 1 when you do a water budget analysis, you have a crop 2 ET, which is the total water demand. And a certain amount of that demand is 3 4 met by natural precipitation and the portion of the 5 natural precipitation that is available to the crop 6 is what we call effective precipitation, so the 7 values shown in this table are what the crops 8 required under the Rocky Ford High Line for 9 irrigation water after they got what they could from 09:04 10 11 12 the natural precipitation, and that's what we call the irrigation water requirement. Q. So the deliveries to the farm from the 13 prior exhibit were based upon actual historical 14 data, correct? 15 16 17 A. That's correct, and that was the supply side of the water budget. Q. And the supply to the fields from Mother 18 Nature is likewise based upon actual historical 19 data, correct? 09:05 20 A. That's correct, and that comes from the 21 climate data. 22 large spreadsheet that is the water budget analysis, 23 but, yes, that comes from the climate data. 24 25 Q. I mean, all of this is inside of this My point being that the climate data was not in some way synthesized or -- Mile High Court Reporting and Video, Inc. 303-202-0210 contact@milehighreporting.com Concerning the Application of: Busk-Ivanhoe, Inc. July 26, 2013 - Volume IV 738 A. 1 No. The climate data was the data from 2 the Rocky Ford to the Southeast weather station that 3 I referred to. Q. 4 5 State CU Model, correct? A. 6 MR. HAMRE: MR. KRASSA: 09:06 10 No objection. Brief voir dire, Your Honor? THE COURT: 12 Yes. VOIR DIRE EXAMINATION 13 14 I'd move the admission of this Exhibit 9-S, Your Honor. 9 11 Yes. MR. HALLFORD: 7 8 And then the calculation is made by the BY MR. KRASSA: Q. 15 Mr. Sayler, in Exhibit 9-S, Sierra, 16 there are zeroes in the columns for December, 17 January, and February. Do you see that? 18 A. Yes, I do. 19 Q. And in the preceding exhibits that were 09:06 20 admitted, 9-Quebec, 9-Romeo, there are substantial 21 diversions in farm deliveries in those months; isn't 22 that right? 23 24 25 A. Up through, I would say, the mid 1970s, Q. Right, and that's when the winter-water yes. Mile High Court Reporting and Video, Inc. 303-202-0210 contact@milehighreporting.com Concerning the Application of: Busk-Ivanhoe, Inc. July 26, 2013 - Volume IV 739 1 storage program started? 2 A. That's correct. 3 Q. So isn't it true that those deliveries 4 historically, in December, January, and February, 5 were used to replenish soil moisture essentially? A. 6 To the extent the Soil Moisture 7 Reservoir had space to store additional water, then 8 that water that was delivered in the wintertime in 9 the water budget analysis would fill that space. 09:07 10 the Soil Moisture Reservoir was full, then those 11 diversions in the winter would just become return 12 flow. 13 Q. If So in the pending exhibit, 9-Sierra, 14 where you've got the zeroes, did you do anything to 15 determine in each of those months and years whether 16 the soil was capable of accepting additional 17 moisture or not before you entered the zeroes? 18 19 A. Well, keep in mind these zeroes are just on the demand side, so this water budget analysis -- 09:07 20 you're bringing in the supply and so, yes, at times 21 there was supply in those early years in the winter 22 months and that supply goes into the soil moisture, 23 or what I described as like the bank account. 24 25 And this is showing the demand side, which is what comes out of the soil moisture through Mile High Court Reporting and Video, Inc. 303-202-0210 contact@milehighreporting.com Concerning the Application of: Busk-Ivanhoe, Inc. July 26, 2013 - Volume IV 740 1 transpiration, through the leaves of the crop, and 2 so there's, on the demand side, there is a zero 3 value shown here, but on the supply side there is 4 water available in those years when diversions 5 occurred in the winter months to go into the soil 6 moisture. 7 Q. Okay. So this reflects the crop demand 8 being zero in those months and does not indicate 9 that there was a full Soil Moisture Reservoir in 09:08 10 those months? 11 A. That's correct, with regard to this 12 table. 13 because it's putting -- Our water budget takes that into account 14 Q. Right. 15 A. -- the supply in the previous table, 16 A-3, into the soil moisture. 17 Q. Okay. 18 A. But that's not shown in this table. 19 09:09 20 21 This is just the demand of what would come out of the water budget. Q. And so these zeroes are not an attempt 22 to show that the winter deliveries in the preceding 23 tables were wasteful or anything like that? 24 A. No. 25 Q. Okay. Mile High Court Reporting and Video, Inc. 303-202-0210 contact@milehighreporting.com Concerning the Application of: Busk-Ivanhoe, Inc. July 26, 2013 - Volume IV 741 1 No objection, Your Honor. 2 MS. RYAN: 3 THE COURT: 4 DIRECT EXAMINATION (Continued) 5 BY MR. HALLFORD: 6 Q. No objection. 9-S is admitted. Now let's look at 9-T. Again, please 7 explain to the Court what this exhibit is portraying 8 in your analysis and the sources of information 9 calculated or otherwise that are shown. 09:09 10 A. These values here are what we refer to 11 as the on-site depletions from the water budget 12 analysis done through the State CU Model, and these 13 are calculated values that essentially take that 14 water supply, which was the farm head-gate 15 deliveries shown in Table A-3. And this is showing how much of that 16 17 water supply went into the Soil Moisture Reservoir 18 or was directly consumed by the crop, so this is 19 showing how much depletion occurred out of the 09:10 20 21 22 23 24 25 amount delivered to the farm. Q. And this is a calculation made by the model itself? A. Yes, it is. MR. HALLFORD: I move the admission of 9-T, Your Honor. Mile High Court Reporting and Video, Inc. 303-202-0210 contact@milehighreporting.com Concerning the Application of: Busk-Ivanhoe, Inc. July 26, 2013 - Volume IV 742 1 MR. HAMRE: 2 MR. KRASSA: 3 THE COURT: 4 5 6 No objection. Voir dire, Your Honor? Yes, sir. VOIR DIRE EXAMINATION BY MR. KRASSA: Q. Mr. Sayler, if I understand correctly, 7 this is the first exhibit that shows results from 8 the use of that model; is that right? 9 09:11 10 11 A. It shows calculations that result from the model, yes, for the on-site depletion. Q. Now, in the engineering profession, 12 aren't there standards for the verification and 13 calibration of models, typically? 14 A. Yes, I believe that that's true. 15 Q. And I think you and I and the water 16 community have encountered that most frequently in 17 groundwater modeling? 18 19 09:11 20 A. Yeah, I was going to say, when you talk about calibration and verification, I think that applies more to stream flow and groundwater 21 modeling. 22 it's not inaccurate to call it a model -- but it's 23 really an accounting spreadsheet as much as 24 anything. 25 I mean, the State CU, although I think And in terms of a calibration process, Mile High Court Reporting and Video, Inc. 303-202-0210 contact@milehighreporting.com Concerning the Application of: Busk-Ivanhoe, Inc. July 26, 2013 - Volume IV 743 1 where you're trying to compare it to some actual 2 stream flow or to some actual groundwater levels, it 3 doesn't really apply here. 4 comparing the supply to the demand based upon 5 certain assumptions and making calculations of how 6 much was consumed. 7 Q. All we're doing is Did you make any effort to verify the 8 model results? 9 effort to determine whether the predicted return 09:12 10 11 In other words, did you make any flows actually accrued to the river? A. One thing about our analysis is we did 12 not need to go into where return flows went at all. 13 I mean, we do calculate a return flow but, for our 14 purposes, all we were doing was trying to determine 15 when there was excess return flows, so when there 16 was excess water. We did not make any statements or 17 18 findings with regard to the location of where those 19 return flows went because it wasn't necessary for 09:13 20 21 22 the purposes of determining if the Rocky Ford High Line had surplus water or not. Q. And you testified a few minutes ago that 23 this budget was prepared by you just to determine 24 how often the High Line Canal had excess or adequate 25 water without importation of Busk-Ivanhoe water and Mile High Court Reporting and Video, Inc. 303-202-0210 contact@milehighreporting.com Concerning the Application of: Busk-Ivanhoe, Inc. July 26, 2013 - Volume IV 744 1 not for the purpose of determining High Line native 2 water consumptive use or return flows; is that 3 right? A. 4 It's correct except for your statement 5 without Busk-Ivanhoe water. I think I did testify 6 this is the total diversion of the Rocky Ford High 7 Line. 8 Q. Got it. 9 A. So it would include Busk-Ivanhoe water 09:14 10 11 12 that was delivered to the Rocky Ford High Line as well as any other supplies. Q. I'm probably going to ask you this on 13 your regular cross again, but would it be 14 appropriate, given the limitations on this model, to 15 include in the decree that the Court might enter a 16 provision that the findings in this decree that were 17 relative to water use under the High Line are 18 limited in applicability to this case only? 19 09:14 20 A. condition. I think that's an appropriate term and I think the State CU Model -- that's the 21 only exception I'll take in what you said because I 22 think that qualifying it as being appropriate due to 23 the limitations of this model -- I think that this 24 model is frequently used for historical use 25 analyses. Mile High Court Reporting and Video, Inc. 303-202-0210 contact@milehighreporting.com Concerning the Application of: Busk-Ivanhoe, Inc. July 26, 2013 - Volume IV 745 But our purpose in this case was solely 1 2 to determine the excess supply of the Rocky Ford 3 High Line. 4 where return flows went, what the timing of those 5 return flows was, or anything of that nature. 6 Q. Got it. Your Honor, with reliance upon that 7 8 It wasn't to determine anything about testimony, no objection. MS. RYAN: 9 No objection. THE COURT: 09:15 10 WSO 9-T is admitted. DIRECT EXAMINATION (Continued) 11 12 BY MR. HALLFORD: 13 Q. Returning briefly to 9-S, Mr. Sayler, we 14 did not discuss the final conclusions. Again, this 15 document, 9-S, that was the irrigation water 16 requirement that was calculated, shows a minimum and 17 a maximum, annual values, and then shows a mean or 18 average value, correct? 19 A. Correct. 09:15 20 Q. And so, of the water delivered to farms, 21 you determined an average annual of 43,724; is that 22 correct? 23 24 25 A. This table is not summarizing the water delivered to farms. Q. That was Table A-3. Correct. Mile High Court Reporting and Video, Inc. 303-202-0210 contact@milehighreporting.com Concerning the Application of: Busk-Ivanhoe, Inc. July 26, 2013 - Volume IV 746 A. 1 And that was the 56,690 acre feet, but 2 this table, summarizing how much, after natural 3 precipitation, how much water, irrigation water, the 4 crops needed, yes, that average under the Rocky Ford 5 High Line for this study period was 43,724 acre 6 feet. 7 Q. Then Exhibit T that we just discussed, 8 the conclusions there, you had the same presentation 9 about minimum and maximum and average, correct? 09:16 10 A. That's correct. 11 Q. And so what's the final average value of 12 13 14 15 35,583 of mean? A. And so these are the on-site completions and they average 35,583 acre feet per year. Q. Let's move to Exhibit 9-U, and what is 16 this step in your process showing and what's the 17 source of the information that is shown? 18 19 09:17 20 A. This is, again, from our water budget analysis, this is the amount of return flow generated on-site, or at the farms, through the 21 Rocky Ford High Line water budget analysis, so this 22 gives us an idea of how much return flow is 23 generated. 24 25 It does not address with regards to where this return flow went to and it does not Mile High Court Reporting and Video, Inc. 303-202-0210 contact@milehighreporting.com Concerning the Application of: Busk-Ivanhoe, Inc. July 26, 2013 - Volume IV 747 1 address taking into account that some of it traveled 2 through the aquifer back to the stream system. 3 does not address the timing of the return flows. Q. 4 5 So there's no distinction between alluvial and surficial return flow? A. 6 7 This would just be the total amount of return flow. That's correct. 8 MR. HALLFORD: 9 this exhibit, Your Honor. MR. HAMRE: 09:18 10 MR. KRASSA: 12 MS. RYAN: 13 THE COURT: 14 MR. HALLFORD: 18 19 09:18 20 No objection. No objection. WSO 9-U is admitted. Thank you, Your Honor. Sorry. THE COURT: 16 17 Move the admission of No objection. 11 15 It Q. That's okay. (By Mr. Hallford) Go ahead. Again, you have conclusions, correct? A. Yes, in this case, for this table, the average amount of return flow for the Rocky Ford 21 High Line was 21,106 acre feet a year, so if you go 22 through the three tables that we've discussed, just 23 in three numbers, you'll recall there was 56,000 24 acre feet delivered to the farm, 35,000 acre feet of 25 actual irrigation consumptive use, on-site Mile High Court Reporting and Video, Inc. 303-202-0210 contact@milehighreporting.com Concerning the Application of: Busk-Ivanhoe, Inc. July 26, 2013 - Volume IV 748 1 depletion, and so 56,000 total delivered, 35,000 2 depletion through the crop, and the remaining 21,000 3 was the return flow. Q. 4 Now let's look at Exhibit 9-V. Now, 5 does this table show the ultimate conclusions from 6 your water budget analysis in terms of excess -- 7 your belief of excess diversions by Rocky Ford High 8 Line? 9 A. Yes, it does. 09:20 10 Q. So explain to us what this is showing 11 12 and where the information was derived. A. This table shows from our water budget 13 analysis the amount of excess water or surplus water 14 that goes beyond essentially the amount that could 15 be stored in the Soil Moisture Reservoir and the 16 amount that was consumed by the crop, as well as the 17 amount that would have been what I would refer to as 18 the minimum return flow based upon the 65 percent 19 efficiency factor that we had in our water budget 09:21 20 21 analysis. So this is what we call excess water 22 resulting from our water budget analysis, and excess 23 water occurs every month when essentially there's 24 available supply being delivered to the farm head 25 gate but the Soil Moisture Reservoir has filled up Mile High Court Reporting and Video, Inc. 303-202-0210 contact@milehighreporting.com Concerning the Application of: Busk-Ivanhoe, Inc. July 26, 2013 - Volume IV 749 1 and is, what we call, spilling. 2 You can't store any more within the root 3 zone and the crop is fully satisfied, so, therefore, 4 it becomes excess water and becomes additional 5 return flow that would make its way back to the 6 stream system. MR. HALLFORD: 7 8 admission of 9-V. MR. HAMRE: 9 MR. KRASSA: 09:21 10 11 THE COURT: I do have a question for Okay. VOIR DIRE EXAMINATION 13 15 No objection. Mr. Sayler. 12 14 Your Honor, I move the BY MR. KRASSA: Q. Mr. Sayler, do you recall the discussion 16 yesterday concerning Table 8-A, 9-J, and the 17 discussion of the synthesis of that data, the pre- 18 1950 years, which became Table 8-B as in bravo? 19 you recall that discussion? 09:22 20 A. Yes, I do. 21 Q. My question to you is, in regard to Do 22 Table A-7 here, 9-Victor, did the results of Table 23 8-B play a role -- were they an input -- into the 24 present exhibit? 25 A. No. We did two separate analyses to Mile High Court Reporting and Video, Inc. 303-202-0210 contact@milehighreporting.com Concerning the Application of: Busk-Ivanhoe, Inc. July 26, 2013 - Volume IV 750 1 reduce Busk-Ivanhoe diversions for what we thought 2 were non-beneficial uses. 3 was a free river and the water wasn't needed from 4 the transmountain sources, and that's the 8-B, and 5 the other one is this analysis in terms of, 6 regardless of whether there was a free river or not, 7 did the Rocky Ford High Line have surplus water 8 supply such that it did not need to import water 9 from the west slope. 09:23 10 Q. One of them was if there So this just depends on the input 11 parameters in the CU Model that you've just 12 described? 13 A. MR. KRASSA: 14 15 That's correct. All right, no objection, Your Honor. 16 MS. RYAN: 17 THE COURT: 18 MR. HALLFORD: 19 MR. HAMRE: 09:24 20 No objection. WSO 9-V is admitted. Thank you, Your Honor. Before we get started again, during Mr. Bethel's testimony, Exhibit A-145, which 21 was Mr. Bethel's summary table, was conditionally 22 admitted because it relied in part on this water 23 budget analysis. 24 admitted at this point? 25 Can we have that unconditionally THE COURT: Mr. Hallford? Mile High Court Reporting and Video, Inc. 303-202-0210 contact@milehighreporting.com Concerning the Application of: Busk-Ivanhoe, Inc. July 26, 2013 - Volume IV 751 1 MR. HALLFORD: 2 THE COURT: 3 Certainly, Your Honor. All right, it will be admitted under those circumstances. DIRECT EXAMINATION (Continued) 4 5 BY MR. HALLFORD: 6 Q. Now, if you look through this table and 7 scroll through the entire period of record -- which 8 is how many years? 9 09:24 10 11 12 13 14 A. It's from 1927 to '86, so that's 60 years inclusive. Q. The frequency of excess does not -- it doesn't happen on an annual basis, does it? A. That's correct. Most years the Rocky Ford High Line did not have excess supply. 15 Q. 16 analysis? 17 A. In how many years did it in this There are 11 years out of the 60 years 18 in this analysis that we calculated excess supply in 19 the Rocky Ford High Line. 09:25 20 Q. So looking at the conclusions about 21 minimum, maximum, and then mean or average, over the 22 60-year period, it was an average of 1,265 acre feet 23 that was excess to diversion requirement? 24 the conclusion? 25 A. Is that That's correct, was excess to the Mile High Court Reporting and Video, Inc. 303-202-0210 contact@milehighreporting.com Concerning the Application of: Busk-Ivanhoe, Inc. July 26, 2013 - Volume IV 752 1 2 irrigation requirement. Q. Thank you. Does that conclude the 3 discussion of Rocky Ford High Line excess, or is 4 there more? 5 A. What we did is then, to determine the 6 amount of Busk-Ivanhoe water that was diverted 7 during times -- during these months when the Rocky 8 Ford High Line essentially was spilling water or had 9 excess -- is we compared this table to the 09:26 10 11 12 Busk-Ivanhoe diversions. Q. Exhibit A-7, I believe. THE COURT: 13 14 17 18 19 09:26 20 MR. HALLFORD: Q. Would you repeat A-7. (By Mr. Hallford) Or maybe it's your Table A-7. A. Well -- and Table A-7 is the table that shows when the Rocky Ford High Line has excess, so that's the one we were just looking at. THE COURT: 21 22 I'm sorry. that exhibit number. 15 16 And for that purpose, let's look at A. 9-B? And then Table 7, which is this table 23 right here, is the comparison of when that excess 24 occurred to the Busk-Ivanhoe diversions. 25 THE COURT: 9-I? Mile High Court Reporting and Video, Inc. 303-202-0210 contact@milehighreporting.com Concerning the Application of: Busk-Ivanhoe, Inc. July 26, 2013 - Volume IV 753 1 2 Q. (By Mr. Hallford) exhibit number here? And what is the This is Exhibit 9-I? 3 A. That's correct. 4 Q. And what does this exhibit portray? You 5 may be reiterating what you've said, but, again, 6 with reference to the document, what does it portray 7 and what are the sources of information? 8 9 09:27 10 A. This table is a comparison of Table 4 from our March 2004 report, which Ms. Wynne testified to, that was the Busk-Ivanhoe diversions 11 through the tunnel, and we compared the monthly 12 diversions through the tunnel to Table A-7 that we 13 just discussed, the monthly surplus or excess under 14 the Rocky Ford High Line. 15 And if the amount of Busk-Ivanhoe water 16 diverted occurred during that month when there was 17 excess, then we compared the two and we took the 18 lesser of the two, either the diversion or the 19 amount of excess, and reduced the Busk-Ivanhoe 09:28 20 diversions by that amount because, in our opinion, 21 the Busk-Ivanhoe water should have been the last 22 water diverted into the canal. 23 If the canal had surplus water, the 24 Busk-Ivanhoe water wasn't needed up to that amount 25 of surplus, and that's what this table is Mile High Court Reporting and Video, Inc. 303-202-0210 contact@milehighreporting.com Concerning the Application of: Busk-Ivanhoe, Inc. July 26, 2013 - Volume IV 754 1 representing, is the comparison of the lesser of the 2 Busk-Ivanhoe diversion, or the amount of Rocky Ford 3 High Line excess. 4 Q. And how did the changes of ownership by 5 Pueblo in 1971 and then -- did that affect this 6 analysis? 7 A. Yes, what we're actually doing since -- 8 what we've actually done in this analysis, since the 9 subject of this case is the diversion of 50 percent 09:29 10 of the Busk-Ivanhoe water, is we've compared 11 50 percent of the surplus or excess in the Rocky 12 Ford High Line to the Busk-Ivanhoe, Inc., 13 diversions, or 50 percent of the system diversions. 14 Q. And why did you do that? 15 A. Under the premise that, for this portion 16 of the Busk-Ivanhoe water, 50 percent of the 17 Busk-Ivanhoe water, it was only satisfying the 18 demand of 50 percent of the Rocky Ford High Line 19 shareholders because the other portion of the 09:30 20 Busk-Ivanhoe water, the other 50 percent transferred 21 by Pueblo, was satisfying the other portion of the 22 Rocky Ford High Line shareholders. 23 So we didn't want to compare this to the 24 entire amount of excess. 25 50 percent of the excess. We compared it to Mile High Court Reporting and Video, Inc. 303-202-0210 contact@milehighreporting.com Concerning the Application of: Busk-Ivanhoe, Inc. July 26, 2013 - Volume IV 755 1 Q. So this analysis does not purport to 2 portray any alleged or historical excess supply 3 associated with the Pueblo Board of Water Works' 4 ownership of Busk-Ivanhoe water rights? 5 A. That's correct. This is simply the 6 amount of excess attributable to the Busk-Ivanhoe, 7 Inc., water rights subject to this case. MR. HALLFORD: 8 9 Exhibit 9-I. MR. HAMRE: 09:30 10 11 MR. KRASSA: 12 THE COURT: 15 No objection. I do have voir dire. Okay. VOIR DIRE EXAMINATION 13 14 I'd move the admission of BY MR. KRASSA: Q. Mr. Sayler, isn't it true that, in 16 actual historical practice, water that came through 17 the tunnel was stored for one period or another in 18 Sugar Loaf Reservoir, which was then renamed 19 Turquoise? 09:31 20 A. It was stored at times, yes. We don't 21 know how much was stored specifically, say, from 22 what was diverted in May to what was diverted in 23 June because we just don't have anything other than 24 annual records. 25 Q. Right, and I remember your testimony Mile High Court Reporting and Video, Inc. 303-202-0210 contact@milehighreporting.com Concerning the Application of: Busk-Ivanhoe, Inc. July 26, 2013 - Volume IV 756 1 about the annual records yesterday afternoon in 2 which your supporting testimony was to the effect 3 that you didn't have the monthly data and, 4 therefore, you didn't consider month-to-month 5 carryover, correct? 6 A. Well, we didn't consider any storage 7 because it's my opinion that the Busk-Ivanhoe water 8 was not decreed for storage and, therefore, this 9 comparison is just looking at the direct irrigation 09:32 10 demand of the Rocky Ford High Line versus the direct 11 irrigation water that, in my opinion, was diverted 12 through the Busk-Ivanhoe Tunnel. 13 Q. It's looking at the demand of the High 14 Line Canal during the same month that the water came 15 through the tunnel, correct? 16 A. That's correct. 17 Q. If the water that came through the 18 tunnel had been stored, as you have just agreed it 19 was, to some extent, then that could have moved the 09:32 20 delivery of that water to the High Line into the 21 next month or the next month after and, in that 22 case, the numbers in this table would be lower; 23 isn't that true? MR. HALLFORD: 24 25 voir dire. Your Honor, this is not This is cross-examination. Mile High Court Reporting and Video, Inc. 303-202-0210 contact@milehighreporting.com Concerning the Application of: Busk-Ivanhoe, Inc. July 26, 2013 - Volume IV 757 1 THE COURT: 2 MR. KRASSA: 3 Q. Sustained. Yes, Your Honor. (By Mr. Krassa) But this table 4 represents, to some extent, the legal theory of your 5 position; is that right? MR. HALLFORD: 6 7 cross-examination as well. 8 THE COURT: 9 MR. HALLFORD: 09:33 10 Sustained. We're talking about whether our position is right or wrong -- 11 THE COURT: 12 MR. KRASSA: 13 I think that that's Sustained, sustained. Thank you, Your Honor. further questions. 14 THE COURT: 15 MR. KRASSA: 16 THE COURT: 17 MS. RYAN: No objection. 18 THE COURT: All right. 19 admitted. 09:33 20 Q. Thank you. But we do object on that. Ms. Ryan? (By Mr. Hallford) Exhibit 9-I is In looking at the 21 conclusions on 9-I, the average value, what does 22 that then reflect to the Court, Mr. Sayler? 23 No A. What Table -- or Exhibit 9-I shows is 24 that, on average, 82 acre feet a year of the 25 Busk-Ivanhoe, Inc., diversions occurred at times Mile High Court Reporting and Video, Inc. 303-202-0210 contact@milehighreporting.com Concerning the Application of: Busk-Ivanhoe, Inc. July 26, 2013 - Volume IV 758 1 2 that the Rocky Ford High Line had surplus supplies. Q. Now, just so we fully understand how 3 this works, would you show us maybe an annual 4 example of how the calculation works for this 5 analysis. 6 A. I think it would be best to go through a 7 monthly example just because it's a monthly 8 calculation. 9 Q. Okay. 09:34 10 A. And that way I can show you the numbers, 11 but -- so we'd have to go back to Table A-7 briefly, 12 and let me, if I could, just -- the example I'll use 13 will be June 1986, since it's right here at the 14 bottom, and if we go to Table A-7 -THE COURT: 15 And for the record, what is 16 that exhibit, A-7 versus? 17 MR. HALLFORD: 18 9-I, the document we were looking at. MR. KRASSA: 19 09:35 20 No, A-7 is 9-Victor and Table 7 is 9-Indian. 21 MR. HALLFORD: 22 THE WITNESS: 23 THE COURT: 24 25 Well, I have A-7 as being A. Okay, 9-V. That's correct. All right. So, in June of 1986, there was 2,321 acre feet of surplus water in the Rocky Ford -- or Mile High Court Reporting and Video, Inc. 303-202-0210 contact@milehighreporting.com Concerning the Application of: Busk-Ivanhoe, Inc. July 26, 2013 - Volume IV 759 1 diverted by the Rocky Ford High Line Canal, and so 2 that's the first value, so if we take 50 percent of 3 that, 1,160 acre feet would be the amount 4 attributable to half of the surplus in the Rocky 5 Ford High Line. 6 7 8 9 09:36 10 Q. A. And that's shown on 9-I, which is the other comparison that comes into play, which is going back to Table 4 of our analysis. THE COURT: Table 4 is what, for the record? THE WITNESS: 13 14 And that would be shown on 9-I? 11 12 (By Mr. Hallford) A. Which is Exhibit 9-F. And if we look at June of 1986, there 15 was 1,253 acre feet of Busk-Ivanhoe, Inc., water 16 diverted through the tunnel, so we've got 1,253 17 diverted through the tunnel. 18 feet of surplus demand, and so, therefore, if we go 19 back to Table 7 -- 09:37 20 Q. (By Mr. Hallford) We've got 1,160 acre Well, and on Table 4, 21 that is simply 50 percent associated with Busk- 22 Ivanhoe, Inc., correct? 23 A. That's correct, and that's, again, so 24 that's the reason why we're comparing it to half of 25 the surplus, but we take the lesser of the Mile High Court Reporting and Video, Inc. 303-202-0210 contact@milehighreporting.com Concerning the Application of: Busk-Ivanhoe, Inc. July 26, 2013 - Volume IV 760 1 diversion, the 1,253 acre feet, or the surplus, 2 1,160 acre feet, and the lesser of those two amounts 3 is the amount of water that -- of Busk-Ivanhoe water 4 that, in my opinion, did not need to be diverted in 5 that month because the Rocky Ford High Line had 6 surplus supply and this was direct irrigation water. 7 Q. And the corollary would be that the 8 difference between those two values you just 9 discussed was needed and, in your analysis, would 09:38 10 11 12 have met the requirements identified through the State CU Model? A. Yes, so a little bit of the Busk-Ivanhoe 13 water in that example would be 93 acre feet, could 14 have been diverted that month, and the Rocky Ford 15 High Line would not have had surplus. 16 Q. And, of course, the numbers vary from 17 year to year and you're not suggesting that 1986 is 18 an average example? 19 09:38 20 A. No, not at all. I mean, 1986 is one of the years when there was the greatest amount of 21 surplus supply because it was a very good year in 22 the Arkansas River Basin, but it's just an example 23 to show how the calculation in the tables occurred. 24 25 Q. Because the average annual was 82 acre feet of excess, correct? Mile High Court Reporting and Video, Inc. 303-202-0210 contact@milehighreporting.com Concerning the Application of: Busk-Ivanhoe, Inc. July 26, 2013 - Volume IV 761 1 A. That's correct. 2 Q. And is that a value that's significant 3 in your ultimate opinions about limitations on the 4 Busk-Ivanhoe water rights under a change? 5 A. It's about 4 percent of the Busk- 6 Ivanhoe, Inc., water that was diverted through the 7 tunnel, just using round numbers, so it's not a 8 large percentage. 9 09:39 10 11 12 Q. And is it water that you have an opinion about in terms of the quantity that should be changed by the Court in this case? A. Yes. We -- as I'll describe later, but 13 we have reduced the transferable yield of the 14 Busk-Ivanhoe, Inc., water to account for this water 15 that was diverted through the tunnel at times when 16 the Rocky Ford High Line had surplus supplies. 17 Q. And is that reduction in addition to 18 reductions for free-river conditions, as previously 19 discussed? 09:39 20 A. Yes, it is. 21 Q. Now let's discuss the study period used 22 in your analysis in this case, Mr. Sayler. 23 A. Okay. 24 Q. From a broader standpoint than this case 25 and from your professional experience and work, do Mile High Court Reporting and Video, Inc. 303-202-0210 contact@milehighreporting.com Concerning the Application of: Busk-Ivanhoe, Inc. July 26, 2013 - Volume IV 762 1 you have an opinion of what, from an engineering 2 perspective, should be considered in selecting a 3 study period for a change of use of a water right? 4 A. I think the study period, in my opinion, 5 should include all of the lawful, relevant use of 6 the water right. 7 Q. 8 Did you hear Mr. Witte's testimony in this case? 9 A. Yes, I did. 09:40 10 Q. Do you agree or disagree with his 11 summary on this subject? 12 A. Yes, I do. 13 Q. You agree? 14 A. I do agree, yes. 15 Q. In forming your opinion -MR. KRASSA: 16 Just a moment. Your Honor, 17 I object. 18 doing is expressing a legal opinion by adopting 19 Mr. Witte's testimony at this point, which was 09:41 20 I just realized that really what he is essentially also a legal opinion. It is 21 objectionable because this gentleman is not a legal 22 expert or an attorney. 23 THE COURT: 24 25 You can cross-examine, Mr. Krassa. MR. KRASSA: Yes, sir. Mile High Court Reporting and Video, Inc. 303-202-0210 contact@milehighreporting.com Concerning the Application of: Busk-Ivanhoe, Inc. July 26, 2013 - Volume IV 763 1 THE COURT: 2 MR. HALLFORD: Q. 3 The objection is overruled. Thank you, Your Honor. (By Mr. Hallford) And in your work in 4 applying your study-period opinion, do you ever 5 treat with or consider periods of undecreed use that 6 have been made of a water right that's at issue? 7 A. Yes, I have. 8 Q. And how, then, do you deal with 9 09:42 10 11 12 undecreed use that's known to have occurred during a period of record that shows diversion for the water right? A. Well, in my opinion, it comes down to 13 what is the lawful use, and that's not really an 14 engineering interpretation. 15 in my opinion, what was -- or not a legal opinion, 16 but in my opinion, what the decree says and what was 17 allowed. It's just based upon, And you can have undecreed uses and you 18 19 can go through a statutory process to obtain, for 09:42 20 example, a substitute water supply plan for those 21 undecreed uses, in which case that's a lawful use, 22 and in that case, I think it is appropriate -- you 23 can set that aside and not include it in your study 24 period. 25 But, in this example, that wasn't done. Mile High Court Reporting and Video, Inc. 303-202-0210 contact@milehighreporting.com Concerning the Application of: Busk-Ivanhoe, Inc. July 26, 2013 - Volume IV 764 1 There was no substitute supply plan. There was no 2 lawful use pursuant to the decree, clearly, 3 municipal use, after 1986, for 23 years, or 4 essentially from 1987 to 2009, and that 23-year 5 period is essentially -- we've got a water right 6 that goes back from 1925 through 2009. So we've got 85 years of total use and 7 8 we've got 23 years of unlawful use, which is over a 9 quarter of the period of use, and I think that, in 09:43 10 that instance, a quarter of the period of record is 11 very relevant in analyzing the historical use of the 12 water right. 13 Q. Mr. Sayler, in your practice -- and I 14 don't want you to name names or give specific 15 examples at this point, but have you had clients who 16 have employed substitute water supply plans prior to 17 obtaining judicial approval of changes of water 18 rights? 19 A. Yes, I have. 09:44 20 Q. Are there other methods that you're 21 aware of and have been involved with by which the 22 purchaser of a water right might perpetuate a lawful 23 use prior to getting a judicial approval of its 24 changes? 25 A. I think the substitute supply plan is Mile High Court Reporting and Video, Inc. 303-202-0210 contact@milehighreporting.com Concerning the Application of: Busk-Ivanhoe, Inc. July 26, 2013 - Volume IV 765 1 the common way to do that. 2 but not that I'm recalling right now. 3 Q. There may be other ways Are you aware of whether purchasers ever 4 acquire water rights and then allow the sellers to 5 continue a use? 6 A. Oh, sure, you bet. I mean -- and a good 7 example, for example, would be the Tri-State change 8 case that I talked about, the 07CW74. 9 the water rights were changed but, within that 09:45 10 11 In that case, decree, the right to continue to irrigate under the water right exists. And until Tri-State needs to put the 12 13 water to the changed uses, those irrigators under 14 the Amity Canal continue to irrigate. 15 that's a common practice. 16 Q. I think And in your experience, is it the 17 practice to engage in those kind of arrangements 18 prior to the change of a water right through the 19 court process? 09:45 20 A. Yes. I mean, frequently, I think, a 21 municipal user, if I understand your question, may 22 acquire a water right and start to get the 23 information together to proceed with the change 24 case, but, while they're doing that, continue to 25 lease the water to the irrigators. Mile High Court Reporting and Video, Inc. 303-202-0210 contact@milehighreporting.com Concerning the Application of: Busk-Ivanhoe, Inc. July 26, 2013 - Volume IV 766 And in that case, it continues to be 1 2 used for the decreed purposes and there isn't really 3 any change circumstances. 4 5 Q. Is that, at times, referred to as a lease- back arrangement? 6 A. That's one way that it occurs, yes. 7 Q. Now, in this case, based on your 8 experience and the information that you had 9 available, decrees and diversion information 09:46 10 regarding the Busk-Ivanhoe system water rights and 11 the Busk-Ivanhoe, Inc., portion of those water 12 rights, what study period did you use in valuing the 13 transferable use, historical use, of those water 14 rights? 15 A. We used the entire period of record from 16 1925 until 2009, through the time of this 17 application. 18 19 09:47 20 Q. And to what uses did you attribute the diversions during that period of record? A. Well, through 1986 we attributed the 21 diversions to the use that I described that was 22 quantified under the Rocky Ford High Line, but after 23 1986, as Ms. Wynne testified to, the entire use for 24 that final 23 years has been undecreed, unlawful 25 municipal uses, and, therefore, we've counted those Mile High Court Reporting and Video, Inc. 303-202-0210 contact@milehighreporting.com Concerning the Application of: Busk-Ivanhoe, Inc. July 26, 2013 - Volume IV 767 1 2 3 uses as zeroes in our analysis. Q. And this was a period of a record during which diversion data was available? 4 A. The post-1986 period? 5 Q. No, the entire period that you used from 6 1925 forward. 7 A. That's correct, yes. 8 Q. So over the entire study period that you 9 09:48 10 11 used, approximately what percentage of that study period involved a period of undecreed use? A. Well, it would be 23 out of -- the total 12 study period, 1925 to 2009, is 85 years, so it would 13 be -- and the unlawful use was from 1987 through 14 2009, which is 23 of those 85 years, and that's 15 about 27 percent of the years of use. 16 Q. Now, you heard the testimony from 17 Mr. Bethel that the use of zeroes in this case for a 18 period of undecreed use would result in a 40 percent 19 reduction in transferable yield. Did you hear that? 09:49 20 A. I did. 21 Q. Is there a consistency or a disconnect 22 between your stated 25 percent -- 27 percent that 23 you just related for a period of nonuse and a 24 40 percent value for a reduction in the transferable 25 water right, or are those apples and oranges? Mile High Court Reporting and Video, Inc. 303-202-0210 contact@milehighreporting.com Concerning the Application of: Busk-Ivanhoe, Inc. July 26, 2013 - Volume IV 768 1 A. I'm not sure where the 40 percent comes 2 from that Mr. Bethel discussed. 3 we've looked at and reduced the historic 4 Busk-Ivanhoe diversions for non-beneficial and for 5 unlawful uses and just isolating the unlawful uses, 6 the municipal uses by Aurora specifically, from 1987 7 to 2009, since that's 27 percent of the study period 8 and the diversions didn't change a lot during that 9 time, I think it would amount to, for that specific 09:50 10 11 12 In our analysis, deduction, about a 27 percent deduction in the yield of the water right. Q. Now I'd like to turn to storage for a 13 bit, and if we could look at Exhibit 85, WSO 85 -- 14 and you're familiar with this document, correct? 15 A. Yes, I am. 16 Q. This has been admitted into evidence? 17 A. That's correct. 18 Q. And you recognize what Ms. Wynne 19 09:51 20 21 22 23 24 25 explained about a typographical error in the box to the right? A. Yes, that this should be "Post" -- this should be "Post 1967." Q. What was the purpose of preparing this graph, Mr. Sayler? A. Well, this graph was -- it was prepared Mile High Court Reporting and Video, Inc. 303-202-0210 contact@milehighreporting.com Concerning the Application of: Busk-Ivanhoe, Inc. July 26, 2013 - Volume IV 769 1 under my supervision by Ms. Wynne and it's a summary 2 of, as she described, it's a summary of the annual 3 Busk-Ivanhoe diversions during the period that it 4 was used for the decreed irrigation purposes, which 5 is 1925 through 1986, prior to Aurora beginning to 6 use the water for the non-decreed purposes. And so the line, the blue line shown 7 8 here, is just summarizing those annual diversions 9 throughout the years. 09:52 10 Q. And the purpose of having the two 11 average lines in this graph separated approximately 12 at 1968 is based upon when Turquoise Reservoir 13 became available for storage of water by 14 Busk-Ivanhoe, Inc.? 15 A. Yes, this line drawn right here is the 16 period or the year that Turquoise was completed, so 17 essentially the Lake Creek Reservoir that, in my 18 opinion, the Busk-Ivanhoe water was being illegally 19 stored in increased from a capacity of a little over 09:53 20 21 22 10,000 acre feet to a capacity of over a hundred thousand acre feet. This was when there was just Sugar Loaf. 23 This was when there was Turquoise, and as I stated, 24 in my opinion, I don't think that storage was a 25 lawful use based upon reading the decree and the Mile High Court Reporting and Video, Inc. 303-202-0210 contact@milehighreporting.com Concerning the Application of: Busk-Ivanhoe, Inc. July 26, 2013 - Volume IV 770 1 claim statements, but what this exhibit shows is 2 why, if you have storage for a direct-flow water 3 right, you can enlarge the use based upon that 4 storage. And in this example, what we're showing 5 6 is when there was less storage available, just in 7 Sugar Loaf Reservoir, which, in itself, I don't 8 think was lawful, but at that time there was 9 4,000 -- over that period, from '25 through '67, 09:54 10 11 there was 4,462 acre feet a year diverted through the tunnel. And then, after they got more storage 12 13 and enlarged to over a hundred thousand acre feet in 14 Turquoise, the average diversion was 6,837 acre 15 feet, which is over a 50 percent increase in the 16 amount of water taken through the tunnel. 17 Q. Now, there's been discussion about when 18 High Line Canal Company was able to commence storage 19 in Turquoise Reservoir. Have you examined that 09:54 20 question? 21 A. Yes, I have. 22 Q. Could we look at Exhibit A-265. 23 Have you reviewed this document before, Mr. Sayler? 24 A. Yes, I have. 25 Q. Can you tell us what it is? Mile High Court Reporting and Video, Inc. 303-202-0210 contact@milehighreporting.com Concerning the Application of: Busk-Ivanhoe, Inc. July 26, 2013 - Volume IV 771 A. 1 This is the minutes, including the 2 superintendent's report, from the Rocky Ford High 3 Line for 1968, the year that Turquoise Reservoir was 4 first completed. 5 Q. And let's look at the Bates page or the 6 exhibit page number. We're looking now at page 10 7 of 15 of Trial Exhibit A-265, and you reviewed this 8 document on this subject? 9 A. Yes, I have. 09:55 10 Q. Did you find anything significant in 11 regard to storage of water by the High Line Canal 12 Company? 13 Court. 14 And if so, would you point it out to the A. THE COURT: 15 16 MR. HALLFORD: Okay, I would move the admission of Exhibit A-265, Your Honor. MR. HAMRE: 19 09:56 20 This exhibit's not been admitted. 17 18 I did. I thought it had already been admitted, Your Honor. 21 THE COURT: Not according to my records. 22 MR. HAMRE: We do not object to its 23 admission. 24 MR. KRASSA: 25 MS. RYAN: No objection. No objection. Mile High Court Reporting and Video, Inc. 303-202-0210 contact@milehighreporting.com Concerning the Application of: Busk-Ivanhoe, Inc. July 26, 2013 - Volume IV 772 1 THE COURT: 2 MR. HALLFORD: 3 I thought that it was in. 4 that to my attention. A-265 is admitted. I apologize, Your Honor. Thank you for bringing 5 Q. 6 question: 7 regarding High Line Canal Company's storage of 8 Busk-Ivanhoe system water? 9 our attention. 09:56 10 A. (By Mr. Hallford) So, again, my Did you find anything of significance And if so, bring it to Yes, I believe, during Ms. Wynne's 11 testimony, she was asked a question of whether we 12 knew that, in 1968, Rocky Ford High Line did not 13 have a contract with the Bureau to store water in 14 Turquoise Reservoir, but what the first -- and I 15 think -- I don't know when the contract was 16 completed. 17 But I think that the superintendent's 18 report here from 1968, dated October 31st, 1968, 19 clearly shows that the Rocky Ford High Line was 09:57 20 storing Busk-Ivanhoe water and that they had -- I 21 believe that's 3,663 acre feet in storage at 22 present, which was as of October 31st, 1968. 23 So I think this document clearly 24 demonstrates that they were storing even as of 1968 25 in the enlarged Turquoise Reservoir. Mile High Court Reporting and Video, Inc. 303-202-0210 contact@milehighreporting.com Concerning the Application of: Busk-Ivanhoe, Inc. July 26, 2013 - Volume IV 773 1 Q. Thank you. Did you hear Mr. Bethel's 2 testimony in cross-examination -- I think it was to 3 Mr. Krassa -- to the effect that storage was 4 necessary for the historical, beneficial use for 5 irrigation of the Busk-Ivanhoe system water rights? 6 A. Yes, I did. 7 Q. Do you agree with that testimony and 8 opinion? 9 A. No, I don't agree with the definite 09:58 10 statement of saying that storage was necessary for 11 the Rocky Ford High Line to have beneficially used 12 the Busk-Ivanhoe water. 13 times when the Busk-Ivanhoe water was available on 14 the west slope that there was need for it in the 15 Rocky Ford High Line without storage. 16 I think there are many And I think, for example, this year 17 would be a good example, although I know there's no 18 Busk-Ivanhoe water in the Rocky Ford High Line this 19 year, but a dry year, like this particular year, if 09:58 20 21 you remember, the Rocky Ford High Line has 501 cfs of water rights. 22 378 of it is from their main water 23 right. 24 between one and two days this year, so most of the 25 year, this year, the Rocky Ford High Line has been That water right was in priority for only Mile High Court Reporting and Video, Inc. 303-202-0210 contact@milehighreporting.com Concerning the Application of: Busk-Ivanhoe, Inc. July 26, 2013 - Volume IV 774 1 very short. I would say all of this year the Rocky 2 Ford High Line has been very short of water supply. And I'm just using this year as an 3 4 example of a dry year, and in those types of years, 5 whether it was May or June, the Rocky Ford High Line 6 would have had unmet demand for Busk-Ivanhoe water, 7 so I don't agree with the statement to say that, 8 without storage, it could not have been beneficially 9 used. I think it could have been beneficially 09:59 10 11 used without storage and that, because it was 12 stored, the use was enlarged unlawfully. 13 Q. Well, are you saying, then, that under a 14 condition like this year, there would have been 15 Busk-Ivanhoe system water available for an 16 irrigation diversion in priority during a time when 17 there was a deficit in water rights at the Rocky 18 Ford High Line Canal? 19 10:00 20 21 22 A. During a dry year like this year, certainly. Q. So the storage would not be necessary to make that beneficial use under that condition? 23 A. That's correct. 24 Q. Now let's talk briefly, I hope, about 25 the so-called Burlington case. I believe you're Mile High Court Reporting and Video, Inc. 303-202-0210 contact@milehighreporting.com Concerning the Application of: Busk-Ivanhoe, Inc. July 26, 2013 - Volume IV 775 1 aware from your work on this case and hearing 2 testimony that the Burlington case is stated by 3 Mr. Bethel as a basis for his study-period opinion, 4 correct? 5 A. Yes, I am. 6 Q. Have you examined or reviewed the 7 Burlington case documents? 8 reviewed? 9 A. 10:01 10 that case. And if so, what have you I've reviewed the order by the Court in I've reviewed the Supreme Court ruling 11 in that case, and I've reviewed the final decree, as 12 well as background information. 13 in that case for one of my clients, South Adams 14 County Water & Sanitation District, who is one of 15 the larger Burlington shareholders and for the 16 portion of the Burlington above Barr Lake. I prepared a report And although I didn't participate in the 17 18 trial because my client settled out of that case, 19 I'm very familiar with the case due to our review of 10:01 20 the outcome on the Burlington Ditch. MR. KRASSA: 21 Your Honor, may I have a 22 continuing objection to these legal debates by 23 engineers? 24 it's unusual to have an engineer testifying as to 25 his interpretation of case law, and, yes, we had I mean, even in water law, Your Honor, Mile High Court Reporting and Video, Inc. 303-202-0210 contact@milehighreporting.com Concerning the Application of: Busk-Ivanhoe, Inc. July 26, 2013 - Volume IV 776 1 Mr. Bethel give a long presentation of the 2 Burlington case. But it seems to me that the customary 3 4 way to do this is for counsel to present to the 5 Court either in closing argument or in briefs, and I 6 don't want to keep on interrupting. THE COURT: 7 8 Q. (By Mr. Hallford) Well, a portion of the decision in the Burlington case is a basis for 11 Mr. Bethel considering undecreed use not to be 12 relevant in a study period. 13 that? 14 You can have a continuing objection. 9 10:02 10 Thank you, Mr. Krassa. A. Yes, I would. Would you agree with That was, I think, part 15 of the basis for the study period that he has 16 selected. 17 Q. Well, did the Burlington case assist you 18 in understanding how a study period is selected in 19 the factual context you faced in this case? 10:03 20 21 22 A. Yes, you know. I think that I can probably show it best with a diagram. Q. First, were there -- and, again, 23 throughout your testimony, I'm not going to ask you 24 to interpret the decree but to simply explain your 25 understanding of the principles, factual settings, Mile High Court Reporting and Video, Inc. 303-202-0210 contact@milehighreporting.com Concerning the Application of: Busk-Ivanhoe, Inc. July 26, 2013 - Volume IV 777 1 and legal that you then used to base your opinion of 2 study period. Is that clear? 3 A. Yes, it is. 4 Q. Are there specific study-period-related 5 determinations made in that case that you found 6 relevant to your selection of an appropriate study 7 period? Just identify them. 8 A. Yes, yes. 9 Q. What are they? 10:04 10 A. Well, essentially, the Burlington case, 11 for the primary or the 403 case, for the four 12 primary rights that were involved in that case, I 13 think the study periods that the Court set all were 14 set in such a manner so as to have the effect of 15 zeroing out all of what the Court found to be 16 unlawful uses under those water rights. And there were a couple of different 17 18 ways that the Court found the use to be unlawful, 19 but the way that the study periods were decreed 10:05 20 21 22 was -- had the effect of essentially making all of those unlawful uses be counted as zeroes. Q. Okay. Let's first talk about the 23 Court's treatment of a study period for the 1885 24 direct-flow Burlington rights. 25 discussion? Do you recall that Mile High Court Reporting and Video, Inc. 303-202-0210 contact@milehighreporting.com Concerning the Application of: Busk-Ivanhoe, Inc. July 26, 2013 - Volume IV 778 1 A. Yes, I do. 2 Q. And the fact that there was a, I guess, 3 a study period that ended in 1909 because of 4 subsequent enlargement of acreage by FRICO. 5 recall that discussion? Do you 6 A. Yes, I do. 7 Q. Are you able to illustrate what you mean 8 9 10:05 10 11 12 about what the Court did? A. zeroing out the unlawful use, yes. Q. THE COURT: A. Could you come and draw that That's fine. What the issue was that I'm going to -MR. HALLFORD: 15 16 Yes, sir. on the board, if the Court would allow that. 13 14 With regard to the study period and Your Honor, may we have people move to -THE COURT: 17 Sure, anybody who needs to 18 move over to see can go in the jury box, if they 19 need to, or wherever they need to go to sit. MR. HALLFORD: 10:06 20 21 off, though, for a moment? 22 projector. THE COURT: 23 24 25 A. Can we turn this light It's blinding, the Sure. The first issue that the Court ruling dealt with with unlawful use was with regard to the Mile High Court Reporting and Video, Inc. 303-202-0210 contact@milehighreporting.com Concerning the Application of: Busk-Ivanhoe, Inc. July 26, 2013 - Volume IV 779 1 Burlington 1885 direct-flow water right, and that 2 was a water right for -- decreed for 350 cfs for 3 irrigation purposes in 1885, and what happened in 4 that case and what happened historically is that, 5 initially, approximately 200 cfs of the water right 6 was used and that 200 cfs was used to irrigate lands 7 primarily above Barr Lake Reservoir, which the ditch 8 runs down into and can deliver water to. And that occurred until 1909, so there 9 10:07 10 was a, if you will, there was an initial base use 11 under this 1885 direct-flow water right of about 200 12 cfs that continued from 1885 to 2009. 13 base use -- 14 THE COURT: 15 THE WITNESS: 16 A. Now, that You mean 1909? Until 1909. Thank you. That base use of the 200 cfs continued 17 beyond and continues to this day, and I have clients 18 that irrigate or that use some of that 200 cfs, and 19 so I'm going to show 2004, which was the date of the 10:08 20 21 decree on this end, and I don't think there was any argument that that base use was lawful. 22 But what happened in 1909 is that the 23 Farmers Reservoir & Irrigation Company was formed 24 and they started to develop additional irrigated 25 lands below Barr Lake, and the Burlington Company Mile High Court Reporting and Video, Inc. 303-202-0210 contact@milehighreporting.com Concerning the Application of: Busk-Ivanhoe, Inc. July 26, 2013 - Volume IV 780 1 started to use, remembering that this was a 350 cfs 2 water right, the Burlington Company started to use 3 that other 150 cfs of the water right on lands below 4 Barr Lake. 5 And that continued under agreements that 6 were in place between the Burlington Company and 7 FRICO and Henry Lynn and the companies that were 8 involved in those water rights, and so there was 9 a -- what the Court determined as an unlawful use of 10:09 10 11 12 this additional 150 cfs of the Burlington direct-flow water right that I show in red here. And so the way that the Court handled 13 that is it said, for the Burlington direct-flow 14 water right, you have to use an 1885-to-1909 study 15 period, and I think Mr. Bethel testified to that and 16 I think what the Applicants are saying is, you know, 17 so this analysis excluded from the historic use 18 analysis and the transferable yield -- it didn't 19 consider this period of unlawful use. 10:10 20 But what I think the Burlington and, for 21 sure, what the Burlington shareholders would say, is 22 that what happened is that all of this unlawful use 23 that occurred beyond 1909 by virtue of only using 24 the 1885-to-1909 study period is that what the Court 25 found was that they get zero credit for the unlawful Mile High Court Reporting and Video, Inc. 303-202-0210 contact@milehighreporting.com Concerning the Application of: Busk-Ivanhoe, Inc. July 26, 2013 - Volume IV 781 1 use and that the effect of that on the historic 2 yield, if you would have looked at the entire period 3 of the Burlington ditch, you know, might have been 4 somewhere in here. And what the Court said is no. 5 You have 6 to use zeroes. 7 in the ruling, but the effect of saying you can only 8 use this study period was to count zero for all of 9 the unlawful use that it found occurred under the 10:11 10 Burlington below Barr Lake. Q. 11 12 And it didn't say this specifically stay here. Thank you, Mr. Sayler. You may want to We have one more. But can we mark this as an exhibit, Your 13 14 Honor, and seek its admission as an illustrative 15 exhibit? MR. HAMRE: 16 For illustrative purposes 17 only, and I expect I'll be talking to Mr. Sayler 18 about it further. THE COURT: 19 MR. KRASSA: 10:12 20 Mr. Krassa? I have the continuing 21 objection, Your Honor, and I think I should 22 supplement that by asking the Court to strike all of 23 Mr. Bethel's discussion of the Burlington case and 24 all of Mr. Sayler's discussion of the Burlington 25 case. Mile High Court Reporting and Video, Inc. 303-202-0210 contact@milehighreporting.com Concerning the Application of: Busk-Ivanhoe, Inc. July 26, 2013 - Volume IV 782 1 THE COURT: 2 MS. RYAN: 3 THE COURT: 4 demonstrative exhibit. 5 6 7 Q. So noted. Thank you. No objection. It will be marked as a (By Mr. Hallford) Would you write, in one of the lower corners, "WSO-91." A. (Witness complied.) 8 (WSO Exhibit 91 was marked.) 9 MR. HALLFORD: 10:12 10 Your Honor, we will move the admission of this document and then -THE COURT: 11 I'll accept it for a 12 demonstrative exhibit and give it the weight I think 13 it deserves. MR. HALLFORD: 14 15 capture the idea of how we -THE COURT: 16 17 MR. HALLFORD: -- get this into your electronic -- or appeal and electronic record. THE COURT: 10:12 20 Correct. MR. HALLFORD: 21 22 Take a digital picture of it and upload it. 18 19 And we will need to Q. We recognize that. (By Mr. Hallford) Did you also consider 23 issues associated with the study period for the 24 metro-pumps operation such as was discussed with 25 Mr. Bethel? Mile High Court Reporting and Video, Inc. 303-202-0210 contact@milehighreporting.com Concerning the Application of: Busk-Ivanhoe, Inc. July 26, 2013 - Volume IV 783 1 A. Yes, I did. 2 Q. And did you determine that that was 3 relevant to your selection of a study period, and if 4 so, why? 5 A. Yes, I think it was very relevant to our 6 selection of a study period and I think it is 7 relevant even more directly than with the 1885 water 8 right because, in the example of the metro pumps, 9 there was water that used to be available to the 10:13 10 Burlington Ditch above its head gate that then, 11 after the North Metro Wastewater Treatment Plant was 12 moved, was no longer available above the Burlington 13 head gate. 14 And so an agreement was made between the 15 parties so that the pumps were constructed to 16 deliver water from the new wastewater treatment 17 plant that now was just downstream from the 18 Burlington head gate into the Burlington head gate. 19 10:14 20 And the Court acknowledged in the Burlington case that those pumps did not increase 21 the historical amount of water diverted by the 22 Burlington Ditch, but the Court also found that, in 23 that case, the illegal or unlawful use was a new 24 point of diversion. 25 And so the Court's finding was to make Mile High Court Reporting and Video, Inc. 303-202-0210 contact@milehighreporting.com Concerning the Application of: Busk-Ivanhoe, Inc. July 26, 2013 - Volume IV 784 1 all of the diversions, even though it was not an 2 expansion of the historic diversions -- and that was 3 acknowledged in the ruling -- but the Court required 4 the Applicants to reduce their transferable yield by 5 the unlawful use from the metro pumps. 6 7 Q. Are you able to illustrate that result or application of fact and law again on a second -- 8 A. Yes. 9 Q. -- piece of paper, if that's acceptable 10:15 10 to the Court? THE COURT: 11 12 A. Go ahead. That's fine. This part of the ruling actually 13 affected other water rights because the metro pumps 14 and the Metro Wastewater Treatment Plant was moved 15 in 1968, so it didn't really affect the Burlington 16 direct-flow transferable yield because the Court 17 ruled that that study period had to be 1885 to 1909. 18 19 10:16 20 But there were three other water rights that were involved, and they were the 1885 storage right -- all of these diverted through the 21 Burlington Ditch head gate -- as well as a 1908 and 22 1909 water right, so, for these three water rights, 23 the Court determined -- 24 So we've got 1927 as the beginning of 25 the study period that the Court accepted and, for Mile High Court Reporting and Video, Inc. 303-202-0210 contact@milehighreporting.com Concerning the Application of: Busk-Ivanhoe, Inc. July 26, 2013 - Volume IV 785 1 the 1908 and 1909 water rights, it used a study 2 period of 1927 -- or accepted a study period of 1927 3 to 1983. 4 and 1909 water right. So I'll show that here. 1983 is the 1908 For the 1983 water right, it accepted a 5 6 study period of 1927 to 2004. 7 the metro pumps were constructed and when the 8 wastewater treatment plant was moved, so what that 9 ruling found is that the Burlington, for these water 10:18 10 Now, in 1968 is when rights, diverted a certain amount of water -- 11 It would have varied, but I'm just kind 12 of showing it on an average basis here -- a certain 13 amount of water from 1927 until 1968, and that that 14 water was all from the South Platte River, and it 15 was water that was lawfully available to the 16 Burlington. 17 Then, in 1968, the pumps were 18 constructed and the metro plant was moved to below 19 the Burlington, so beforehand the metro plant was 10:18 20 above the Burlington. It would divert its 21 discharges into the stream and it would be part of 22 the waters of the South Platte River that the 23 Burlington water rights -- that these three water 24 rights diverted. 25 After 1968, there was a finding that the Mile High Court Reporting and Video, Inc. 303-202-0210 contact@milehighreporting.com Concerning the Application of: Busk-Ivanhoe, Inc. July 26, 2013 - Volume IV 786 1 Burlington didn't increase its diversions so the 2 total amount diverted -- and I'm going to go to 2004 3 again -- the total amount diverted stayed the same, 4 but now what happened is a portion of this was 5 diverted at the Burlington head gate from the South 6 Platte River. And another portion of it, but no 7 8 greater than what had historically been diverted 9 from the South Platte River, was diverted from the 10:19 10 metro pumps directly into the Burlington Canal a 11 short distance below its head gate, and what the 12 Court found was that this diversion, even though it 13 was not an expansion of use, was an undecreed point 14 of diversion and, therefore, an unlawful use. And the Court, for the transferable 15 16 yield of these three water rights -- and it had the 17 greatest effect on the Burlington storage right 18 because that was the study period went all the way 19 to 2004 for that, but it also had an effect on the 10:20 20 21 22 1908 and 1909 rights because that study period went to 1983. But essentially the Court said include 23 zero for transferable yield for those unlawful uses, 24 and that had a significant diminishment of the 25 historical yield of the Burlington water rights, and Mile High Court Reporting and Video, Inc. 303-202-0210 contact@milehighreporting.com Concerning the Application of: Busk-Ivanhoe, Inc. July 26, 2013 - Volume IV 787 1 the decree specifically, the Court's ruling, 2 specifically found that there was no expansion of 3 diversion, that the amount of water diverted by the 4 Burlington before the metro pumps -- or the amount 5 of water diverted by the Burlington after the metro 6 pumps was not significantly different from the 7 amount of water diverted before the metro pumps. Q. 8 9 10:21 10 Thank you, Mr. Sayler. Could you label that as Exhibit WSO-92, and I think that ends our artistic endeavors. 11 (Exhibit 92 was marked.) 12 THE COURT: Same objection, Mr. Krassa, MR. KRASSA: Your Honor, if I may take 13 to 92? 14 15 just a moment to amplify my objections -- 16 THE COURT: 17 MR. KRASSA: Certainly. -- certainly every water 18 court opinion by the Supreme Court, and perhaps 19 every opinion, contains at least four sets of facts. 10:22 20 There are the facts as presented by the Court in its 21 opinion. There are the facts as understood by the 22 prevailing party, the facts as understood by the 23 losing party, and, in many instances like this, the 24 facts of the actual physical situation as understood 25 by independent, knowledgeable experts like Mile High Court Reporting and Video, Inc. 303-202-0210 contact@milehighreporting.com Concerning the Application of: Busk-Ivanhoe, Inc. July 26, 2013 - Volume IV 788 1 Mr. Sayler. Similarly, in every such case, there are 2 3 four sets of rulings. 4 presented in the printed opinion of the Court. 5 There's the ruling as understood by the Applicant or 6 the prevailing party, the ruling understood by the 7 losing party, and then there is the ruling as 8 understood by people who are knowledgeable in the 9 field. 10:22 10 There is the ruling actually But when a case is presented to a Court, 11 the only facts that matter are the facts found by 12 the Supreme Court that can be identified by page 13 citation to Pacific Third. 14 matter anymore, and there has been a lot of 15 heartburn over that over the years. 16 The actual facts don't And, similarly, the only ruling that 17 matters is the ruling presented in the printed 18 opinion published in the Pacific Third that can be 19 page-cited because that's the only thing that courts 10:23 20 can rely on, and in this presentation we've had no 21 way to determine whether Mr. Sayler has been quoting 22 from the opinion, whether he's been putting in facts 23 that he gleaned or opinions that he gleaned, or 24 whether he has been putting in facts that he 25 acquired independently or by hearsay. Mile High Court Reporting and Video, Inc. 303-202-0210 contact@milehighreporting.com Concerning the Application of: Busk-Ivanhoe, Inc. July 26, 2013 - Volume IV 789 1 None of that is available to us, so it 2 is for those reasons, Your Honor, that I object and 3 that I renew my motion to strike all of this 4 discussion of the Burlington. 5 THE COURT: 6 MR. KRASSA: 7 THE COURT: 8 MS. RYAN: 9 MR. HALLFORD: 10:24 10 11 12 13 Thank you, Mr. Krassa. Thank you, sir. Ms. Ryan? No objection. Do you wish a response for Your Honor? THE COURT: If you want to make a record, go ahead. MR. HALLFORD: Well, I would observe, 14 first, that this is an issue that doesn't affect the 15 Rocky Ford High Line Canal Company at all. 16 Notwithstanding, I take it as a legitimate, you 17 know, comment and objection. 18 testimony that Mr. Bethel looked at this case or 19 part of this case and found it relevant to his 10:24 20 It's clear from the position in regard to ignoring undecreed use, that 21 he got a principle from this case that validated his 22 prior position or helped him create his position on 23 what was a relevant study period for this case and 24 then he did not recognize the metro-pumps-study- 25 period analysis. Mile High Court Reporting and Video, Inc. 303-202-0210 contact@milehighreporting.com Concerning the Application of: Busk-Ivanhoe, Inc. July 26, 2013 - Volume IV 790 So I think it is entirely fair that, in 1 2 response, Mr. Sayler be allowed to explain what he 3 got from the case, and certainly, if there is, in 4 the cases, material at which Mr. Sayler has 5 materially varied, counsel will point that out on 6 cross-examination and perhaps attempt to undermine 7 what has been presented here on cross-examination. 8 But I think it's entirely appropriate, 9 10:25 10 given how the case has progressed, that this is a very relevant issue. THE COURT: 11 12 Mr. Hamre, I don't think I got your position. MR. HAMRE: 13 I think, in every water 14 case, we end up trying to figure out what the courts 15 have done in the past and how that ought to apply to 16 this case. 17 objection to the exhibit. 18 19 10:25 20 21 For demonstrative purposes, I have no THE COURT: WSO 92 will be admitted for demonstrative purposes and the Court will give it the weight it thinks it deserves. MR. HALLFORD: Thank you, Your Honor. 22 Your Honor, we are nearing completion. I was 23 perhaps optimistic in my estimate, but if you wish 24 to take a break at this time, we will move to 25 another area that will take some time. Mile High Court Reporting and Video, Inc. 303-202-0210 contact@milehighreporting.com Concerning the Application of: Busk-Ivanhoe, Inc. July 26, 2013 - Volume IV 791 THE COURT: 1 All right, we'll go ahead 2 and take the morning recess at this point. 3 in recess until probably 10:40. 4 (Recess taken.) 5 THE COURT: Please be seated. 6 back on the record on 2009CW142. 7 counsel are present. Parties and and you're still under oath, sir. THE WITNESS: 10:44 10 THE COURT: 11 12 We're Mr. Sayler, you're still on the stand 8 9 We'll be Q. Yes. Proceed. (By Mr. Hallford) Mr. Sayler, we would 13 like to now look at your Table 10. 14 WSO 10-B. 15 you tell us how it was prepared, and by whom? 16 A. That's Exhibit Do you recognize this exhibit, and can Yes. This table was -- well, it's Table 17 10 of our June 4th, 2013, report, with one revision 18 that we did on June 20th, just to add an "Average" 19 row down at the bottom for another period, time 10:44 20 21 22 period, just for comparison purposes. We added this 1925 to '86 average row. But this is a table that summarizes my 23 opinion of the transferable yield of the 24 Busk-Ivanhoe, Inc., water rights and it was prepared 25 under my supervision and direction and was part of Mile High Court Reporting and Video, Inc. 303-202-0210 contact@milehighreporting.com Concerning the Application of: Busk-Ivanhoe, Inc. July 26, 2013 - Volume IV 792 1 our June 2013 report. It was also -- a previous 2 version was part of our March 2013 report. 3 Q. And why was the later report submitted? 4 A. The later report was submitted to make 5 some minor corrections after the depositions to 6 interpretation of Rocky Ford High Line minutes and 7 the amount of water diverted by the Rocky Ford High 8 Line, or I should say the amount of Busk-Ivanhoe 9 water diverted by the Rocky Ford High Line. MR. HALLFORD: 10:45 10 11 admission of WSO 10-B. 12 MR. HAMRE: 13 MR. KRASSA: 14 MS. RYAN: 15 THE COURT: 16 Q. Your Honor, I'd move the No objection. No objection. No objection. 10-B is admitted. (By Mr. Hallford) Mr. Sayler, more 17 specifically identify what's presented in this table 18 and from where the information comes. 19 10:46 20 A. Sure. This large area here on the left -- and this is for our entire study period of 21 1925 through 2009, and you can see, if you'll scroll 22 down to 2009 here, the columns shown here on the 23 left for each month, November through October, and 24 then the total column for the year. 25 This is the Busk-Ivanhoe diversions, Mile High Court Reporting and Video, Inc. 303-202-0210 contact@milehighreporting.com Concerning the Application of: Busk-Ivanhoe, Inc. July 26, 2013 - Volume IV 793 1 Busk-Ivanhoe, Inc., diversions through the tunnel 2 adjusted for the periods when there was excess water 3 under the Rocky Ford High Line, so subtracting out 4 that 82 acre feet that I discussed earlier and 5 subtracting out diversions or adjusting diversions 6 for periods when there was a free river on the 7 Arkansas River, which Ms. Wynne discussed yesterday. So this set of columns here -- and it 8 9 10:47 10 would be the total amounts of Rocky Ford High Line lawful, beneficial use of the Busk-Ivanhoe, Inc., 11 water, including the amounts that were taken through 12 the Rocky Ford High Line head gate when there was a 13 need or an irrigation requirement for the water and 14 the 12 and a half percent transit loss on top of 15 that that was charged by the State to carry the 16 water down to the Rocky Ford High Line from the 17 tunnel. 18 Q. And what is Column 2? 19 A. Could I go through just the final 10:48 20 numbers here for Column 1 first? 21 Q. Sure. 22 A. It's kind of helpful to compare that to 23 Column 2. 24 Q. Please. 25 A. So this shows that, again, during the -- Mile High Court Reporting and Video, Inc. 303-202-0210 contact@milehighreporting.com Concerning the Application of: Busk-Ivanhoe, Inc. July 26, 2013 - Volume IV 794 1 I'm going to point out this row that we added here, 2 this 1925 to '86 average. 3 is to, again, just kind of summarize, before we get 4 into the period of unlawful municipal use, what the 5 average lawful use under the Rocky Ford High Line 6 was. The reason we added that And so, from 1925 through 1986, on 7 8 average, 2,311 acre feet, in my opinion, was 9 diverted through the tunnel that was needed for 10:49 10 11 12 diversion and utilized under the Rocky Ford High Line Canal. Q. And that's simply of Busk-Ivanhoe, Inc., 13 water, the 50 percent share now owned by 14 Busk-Ivanhoe, Inc., and subject to this change? 15 A. Yes. 16 Q. Okay. 17 18 19 Then what is the average value above the 1925-to-1986 average? A. This incorporates the entire period of record, the 19 -- 10:49 20 Q. '25? 21 A. The 1925-through-2009 period, and, if I 22 may, I need to back up just for a moment because 23 we're going to get into Column 2 and that is the 24 storage use and the unlawful storage use, so I 25 misspoke a minute ago when I said this 2,311 was the Mile High Court Reporting and Video, Inc. 303-202-0210 contact@milehighreporting.com Concerning the Application of: Busk-Ivanhoe, Inc. July 26, 2013 - Volume IV 795 1 total amount of water diverted and lawfully used. Because, in my opinion, it includes 2 3 water that was stored at least from our annual basis 4 and that we adjust for in Column 2 here, which I'll 5 get to in a moment. 6 Q. Okay. 7 A. So the average was 2,311 acre feet 8 between 1925 and 1986 and, when we incorporate the 9 entire period of record of the B-I, Inc., water from 10:50 10 1925 to 2009, the date of the application, and 11 include zeroes from 1987 through 2009, with one 12 exception -We do have one notation in the Rocky 13 14 Ford High Line minutes in 1989 that indicated 15 160 acre feet was used for irrigation under the 16 Rocky Ford High Line system, so we've included that 17 as a lawful use, but, otherwise, from '87 through 18 2009, we've zeroed out all of the diversions because 19 they were going to municipal use for the City of 10:51 20 Aurora. And so, when we incorporate those zeroes 21 22 and get an average from 1925 through 2009, we get 23 1,688 acre feet a year. 24 Q. Okay. Now address Column 2, Mr. Sayler. 25 A. Column 2 comes from the revised Table 9 Mile High Court Reporting and Video, Inc. 303-202-0210 contact@milehighreporting.com Concerning the Application of: Busk-Ivanhoe, Inc. July 26, 2013 - Volume IV 796 1 of our June report that both Ms. Wynne and I 2 testified to yesterday, and this is the reduction 3 for the amount of water in an annual time step that, 4 in our opinion, was stored of the Busk-Ivanhoe water 5 and that was not used directly by the Rocky Ford 6 High Line on an annual-basis analysis, and this 7 comes, Column 2, comes from Table 9 of our June 2013 8 report. 9 10:52 10 Q. You called this column "Storage" and indicated a belief that it was stored. In point of 11 fact, you believe it was available for storage, 12 correct, because you didn't track it to any specific 13 reservoir, did you? 14 A. We didn't track it to any specific 15 reservoir. 16 testimony yesterday, what we show as storage is just 17 the difference between what was diverted through the 18 tunnel on behalf of Busk-Ivanhoe, Inc., so 19 50 percent of the total diversion, and what was 10:53 20 21 22 This is just, if you'll recall from the diverted by the Rocky Ford High Line in that year, plus a 12-and-a-half-percent transit loss. So what we show as storage is simply, on 23 an annual basis, what the Rocky Ford High Line did 24 not use in this column, and as I testified to 25 yesterday, we indicated a storage. It's, in my Mile High Court Reporting and Video, Inc. 303-202-0210 contact@milehighreporting.com Concerning the Application of: Busk-Ivanhoe, Inc. July 26, 2013 - Volume IV 797 1 opinion, it's part of the 20 percent of the water 2 that was just given to CF & I for the right to 3 store. And there's been no quantification of 4 5 what happened to it and we've just deducted it 6 because it wasn't used by the Rocky Ford High Line 7 in that particular year. 8 beyond that we've excluded from the allowable 9 transferable yield. Q. 10:54 10 It's diversions above and And, again, I believe you agreed with me 11 yesterday that, in point of fact, while some of this 12 water may have been stored, it's possible that some 13 of this water may have gone down the river to other 14 ditches, or even into the State of Kansas, correct? A. 15 We don't know what happened to this 16 water. 17 that's the difference between what came through the 18 tunnel and what was delivered down the river to the 19 Rocky Ford High Line. 10:54 20 21 22 It's just excess water above and beyond Q. Now, in looking at Column 3, then, would you explain that to the Court. THE COURT: Just a second, Mr. Hallford. 23 The witness referred to this Column 2 as the numbers 24 coming from Table 9. 25 What exhibit is that? MR. HALLFORD: Mr. Grosscup will inform Mile High Court Reporting and Video, Inc. 303-202-0210 contact@milehighreporting.com Concerning the Application of: Busk-Ivanhoe, Inc. July 26, 2013 - Volume IV 798 1 me, I think. 10-A? 2 THE COURT: 10-A is not in evidence yet. 3 MR. HAMRE: I think maybe WSO 9-L. 4 MR. HALLFORD: We have an indication 5 that that was admitted during Ms. Wynne's testimony, 6 10-A, WSO 10-A. 7 Do counsel agree with that statement? 8 MR. HAMRE: Yes. 9 THE COURT: Do you agree? 10:55 10 MR. HAMRE: 10-A. 11 THE COURT: All right, 10-A is admitted. Q. 12 13 (By Mr. Hallford) Okay. Mr. Sayler, would you explain Column 3 to the Court, please. A. 14 Column 3 just takes the diversion in 15 Column 1 minus the amount that we show as storage or 16 use, as we've discussed, use that we can't quantify, 17 and the result, the difference, is shown in 18 Column 3, so, for example, if you look at 1929, 19 there was 2,985 acre feet taken through the tunnel 10:56 20 21 22 after our adjustments for periods of excess and free river. And if we went to Exhibit 10-A, we'd see 23 that there was -- again, we're talking about just 24 the 50 percent attributable to the Rocky Ford High 25 Line, so there was only 810 acre feet, with transit Mile High Court Reporting and Video, Inc. 303-202-0210 contact@milehighreporting.com Concerning the Application of: Busk-Ivanhoe, Inc. July 26, 2013 - Volume IV 799 1 loss, diverted by the Rocky Ford High Line, so there 2 was 2,342 acre feet of water that was not diverted 3 by the Rocky Ford High Line, could have been stored, 4 could have been used for other purposes. We've indicated that it was stored on 5 6 that annual time step but, as I noted yesterday, 7 it's just water that has not been quantified. 8 Q. Okay. 9 A. And so that 2,342 comes into Column 2 of 10:58 10 Exhibit 10-B right here, and so the difference 11 between the amounts diverted for beneficial use and 12 the amount that was stored and wasn't used by the 13 Rocky Ford High Line -- we end up getting 644 acre 14 feet in that particular year. And that's the total adjusted diversion 15 16 shown in Column 3, which, in my opinion, is the 17 amount of -- is our quantification of the 18 transferable yield of the Busk-Ivanhoe, Inc., water 19 subject to this case. 10:58 20 Q. And if we can look at the bottom just to 21 identify for the Court the conclusion of the 22 analysis, you found -- 23 A. Yes. 24 Q. -- values for the average and then for 25 the shorter-term average. Explain those. Mile High Court Reporting and Video, Inc. 303-202-0210 contact@milehighreporting.com Concerning the Application of: Busk-Ivanhoe, Inc. July 26, 2013 - Volume IV 800 1 A. Yeah, I think what's really relevant, 2 because it's the total average, because that's what 3 incorporates the zeroes for the municipal use, as 4 well as the reductions for non-beneficial or non -- 5 unlawful storage in these previous years -- and so 6 that average from 1925 to 2009 would result in a 7 transferable yield of 1,211 acre feet a year. 8 Q. And the other period? 9 A. The other period just shows, you know, 10:59 10 before the zeroes get added in for the municipal 11 use. 12 for non-beneficial uses and unlawful storage, you 13 get an average of 1,658 acre feet a year. 14 15 16 From 1925 to 1986, just making the reduction Q. Thank you. Now, if we can look at Exhibit WSO 90, do you recognize this document? A. Yes. This is a table that we prepared 17 that is Table 1 of Mr. Bethel's June report, or 18 rebuttal report, with two adjustments in two years 19 that we prepared in order to demonstrate that the 11:00 20 amount of water used under the Rocky Ford High Line 21 pursuant to Mr. Bethel's analysis is similar to the 22 amount of water used under the Rocky Ford High Line 23 pursuant to our analysis. 24 25 Q. Well, then, is the source, the basic source of information, except for your adjustments Mile High Court Reporting and Video, Inc. 303-202-0210 contact@milehighreporting.com Concerning the Application of: Busk-Ivanhoe, Inc. July 26, 2013 - Volume IV 801 1 that you can explain, Mr. Bethel's work? 2 A. Yes. 3 Q. Well, then, explain the adjustments that 4 5 were made and why you made them. A. There's two years that are highlighted 6 that are shown here, 1965 and 1985, and, again, this 7 is the analysis that Mr. Bethel did, and these are 8 two years when essentially the storage reservoirs in 9 the Arkansas Basin spilled and, in my opinion, there 11:01 10 was adequate supply and there was no use under or 11 need for the water under the Rocky Ford High Line, 12 so we've essentially zeroed those two years out. MR. HALLFORD: 13 14 Your Honor, move for the admission of WSO 90. MR. HAMRE: 15 As long as it's clear that 16 this is BBA's work and not Mr. Bethel's work, I have 17 no objection. 18 MR. KRASSA: 19 MS. RYAN: THE COURT: 11:02 20 21 22 23 Q. No objection. No objection. WSO 90 is admitted. (By Mr. Hallford) What did you conclude from this analysis, Mr. Sayler? A. Well, if you can scroll down to the 24 average numbers -- and, again, looking at -- 25 Mr. Bethel has the 1928-through-1986 period Mile High Court Reporting and Video, Inc. 303-202-0210 contact@milehighreporting.com Concerning the Application of: Busk-Ivanhoe, Inc. July 26, 2013 - Volume IV 802 1 reflected here. When we looked at the Rocky Ford 2 High Line, we presented an average of 1925 to 1986. And that was on the previous exhibit, 3 4 but -- so we've got a three-year differential in the 5 study period, but one of the things that I think is 6 relevant is that we came up with an average of 2,311 7 acre feet a year of use under the Rocky Ford High 8 Line before we made the storage reduction. So that was in Column 2 of the previous 9 11:03 10 exhibit, and Mr. Bethel has what I think is a 11 similar value or a similar parameter, and that's 12 this right-hand column which demonstrates in his 13 table how much water was used under the Rocky Ford 14 High Line, accounting for -- 15 You know, like I said, this is before 16 our storage reduction, so it's accounting for the 17 use of storage, and his number, when we made these 18 two years of adjustments -- and it's a slightly 19 different study period, but insignificant, in my 11:03 20 opinion -- is the exact same value, 2,311 acre feet 21 of water actually used under the Rocky Ford High 22 Line. 23 And even before making this adjustment, 24 if you go straight to Mr. Bethel's Table 1, our 25 difference was about 105 acre feet because his Mile High Court Reporting and Video, Inc. 303-202-0210 contact@milehighreporting.com Concerning the Application of: Busk-Ivanhoe, Inc. July 26, 2013 - Volume IV 803 1 average was 2,416, and so that's about a 4-and-a- 2 half percent difference, so the relevance of that, 3 in my opinion, is that it's an indication that we've 4 both shown approximately the same amount of use 5 under the Rocky Ford High Line that has been 6 quantified for this period of 1925 to 1986. 7 And that the amount of use, this 2311 8 that's actually been quantified as used under the 9 Rocky Ford High Line, whether you agree with storage 11:04 10 or not, is significantly less than the total amount 11 of water diverted through the tunnel for the 12 Busk-Ivanhoe. And I should indicate that this includes 13 14 things like transit losses and stuff, so the 15 difference is this amount of water that, in my 16 opinion, that was paid to the 20 percent storage fee 17 that just hasn't been quantified went to an 18 industrial user and does not show up in either 19 Mr. Bethel's historical use analysis or our 11:05 20 historical use analysis. Q. 21 And what is the 1950 to 1971 average 22 that you presented? 23 it? 24 25 A. Why did you do that? What is Well, again, this is Mr. Bethel's table and we just tried to, except for these two Mile High Court Reporting and Video, Inc. 303-202-0210 contact@milehighreporting.com Concerning the Application of: Busk-Ivanhoe, Inc. July 26, 2013 - Volume IV 804 1 modifications here, we didn't change anything. 2 Mr. Bethel's rebuttal report talks about, in his 3 opinion, in terms of analyzing strictly just the 4 irrigation use under the Rocky Ford High Line, he 5 discusses a '50-through-'71 period as perhaps being 6 a good representative period as part of his report, 7 so he's showing that value. There's no real relevance because we did 8 9 11:06 10 not limit our analysis to that value. The main purpose I'm trying to show here is from the period 11 of time, essentially, to beginning when the Rocky 12 Ford High Line first started using the Busk-Ivanhoe 13 water until they stopped using it and Aurora 14 acquired the water. So up until 1986, that both we and 15 16 Mr. Bethel have very similar opinions of how much 17 was used under the Rocky Ford High Line and that 18 that total amount used under the Rocky Ford High 19 Line was significantly less than the total amount of 11:06 20 water diverted through the tunnel, even after giving 21 22 them credit for transit losses. Q. On a percentage basis, approximately 23 what's the difference between your conclusion and 24 Mr. Bethel's conclusion on this subject of the water 25 used beneficially in the Rocky Ford High Line Mile High Court Reporting and Video, Inc. 303-202-0210 contact@milehighreporting.com Concerning the Application of: Busk-Ivanhoe, Inc. July 26, 2013 - Volume IV 805 1 2 system? A. Well, you know, with these two 3 adjustments, we come up with the exact same number, 4 this 2,311 acre feet. 5 about a 4-and-a-half-percent difference, but maybe 6 the most relevant percentage to keep in mind is that 7 it totals only about 75 percent of the water taken 8 through the tunnel. 9 11:08 10 11 12 Q. Without the adjustments, it's Now let's look at WSO Exhibit 10-C. Do you recognize this document and know how it was created? A. This is Table 12, revised from our 13 June 4th, 2013, report, and it's a table that we use 14 to develop the volumetric limits that we propose to 15 be applied on future uses of the Busk-Ivanhoe water 16 subject to this change case. 17 18 19 11:08 20 Q. And pre-revision? Was it presented before in another report? A. It was presented as Table 12 in our March report and we made those adjustments in a 21 handful of years based upon slightly different 22 interpretations of the Rocky Ford High Line minutes 23 that I described, and that's the reason for the 24 change between our March report and our June report. 25 Q. And at the end of the document, without Mile High Court Reporting and Video, Inc. 303-202-0210 contact@milehighreporting.com Concerning the Application of: Busk-Ivanhoe, Inc. July 26, 2013 - Volume IV 806 1 commenting on the significance, you've presented 2 proposed terms and conditions on volumetric limits, 3 correct? 4 A. That's correct. MR. HALLFORD: 5 6 admission of WSO 10-C. 7 MR. HAMRE: 8 MR. KRASSA: 9 MS. RYAN: THE COURT: 11:09 10 11 Q. Your Honor, we move the No objection. No objection. No objection. 10-C is admitted. (By Mr. Hallford) Can you deal with the 12 big box on the top first in terms of why that is 13 presented? 14 A. Sure. 15 Q. And what it shows to the Court? 16 A. If you can scroll up, this is the -- the 17 middle column here is our estimate of the 18 transferable yield of the Busk-Ivanhoe, Inc., water 19 from the previous exhibit, Exhibit 10-B, after 11:09 20 21 reductions for non-decreed and non-beneficial uses. And if you'll scroll down, you'll see 22 the average that we just discussed on Exhibit 10-B 23 of 1,211 acre feet, which is the average 24 transferable yield that we have analyzed for the 25 Busk-Ivanhoe water transferable in this case. Mile High Court Reporting and Video, Inc. 303-202-0210 contact@milehighreporting.com Concerning the Application of: Busk-Ivanhoe, Inc. July 26, 2013 - Volume IV 807 1 Q. And what is the max value in that box? 2 A. 3,836 acre feet is the maximum year. 3 Q. And that is the maximum year that 4 5 6 7 occurred during this period of record? A. That's the maximum during this 85-year period of record from '25 to 2009. Q. Now, the smaller presentation is of 8 proposed volumetric limits. 9 concept to what Mr. Bethel has proposed, correct? 11:10 10 A. It appears similar in For the most part; there's some minor 11 differences, in particular with -- in terms of the 12 specific limits, in terms of whether or not a 13 10-year limit is necessary or not, but, yeah, we're 14 both proposing annual maximums, a 60-year limit and 15 20-year limit, and we've got a 10-year cumulative 16 limit that we're proposing. 17 Q. So are these limits that are proposed 18 for inclusion in the Court's final decree in this 19 case to limit future use of the water rights for 11:11 20 21 municipal use? A. Yes, these are the limits that are 22 necessary, in my opinion, to limit future use to the 23 historical use that was lawful and beneficial. 24 25 Q. Can you explain the derivation and need for each of these limits? Mile High Court Reporting and Video, Inc. 303-202-0210 contact@milehighreporting.com Concerning the Application of: Busk-Ivanhoe, Inc. July 26, 2013 - Volume IV 808 A. 1 Yeah, the concept of volumetric limits 2 is, I think, fairly standard in change cases. 3 can vary in terms of which volumetric limits you 4 include. 5 annual maximum, which is the 3,836 acre feet a year, 6 which, if we scroll up, we can just find right -- 7 give me a moment. The limits that we've proposed include an 8 Can you scroll down a little bit. 9 THE COURT: 1970? 11:12 10 Q. (By Mr. Hallford) 11 A. Let me -- 12 THE COURT: 13 THE WITNESS: A. 14 Is it in 1972? I think it was 1970. Yes, I'm sorry. No, 1972 looks very similar to that 15 number. 16 The maximum year was actually 1970, 3,836, and 17 that's what we proposed below for our max-year 18 limit. 19 11:13 20 21 It It's 3,386, but it's slightly different. Q. (By Mr. Hallford) Thank you. What about the other proposed limits? A. If you can scroll down again, the 22 60-year limit is just equal to the average for the 23 period of record times 60, so if you took 1,211 and 24 multiplied it times 60 years, so that over that 25 entire period you took what was the historical Mile High Court Reporting and Video, Inc. 303-202-0210 contact@milehighreporting.com Concerning the Application of: Busk-Ivanhoe, Inc. July 26, 2013 - Volume IV 809 1 2 3 4 average, the limit is 72,656 acre feet. Q. And what's the purpose of using that long of a cumulative limit? A. It's a long-term average that ensures 5 that, over a long period of time, in this example, 6 60 years, that you're not exceeding what was 7 diverted and put to beneficial use, in this case, 8 over a long period of record. 9 11:14 10 11 12 Q. Is it fair to say that, within the 60-year limit, the annual maximum becomes the maximum when summed at 60? A. Yes. I mean, it's saying, over 13 60 years, you can only take this average amount. 14 You can take more than the average in years up to 15 the 3,836 and you can take less than the average in 16 years, but over 60 years you have to not exceed the 17 historical average of 1,211. 18 Q. Which is 1,211, for the record? 19 A. Yes. 11:14 20 Q. Then the 20-year cumulative, how was 21 22 that derived and why is it needed? A. Well, for the 20-year cumulative, 23 obviously that's a shorter period of time and, you 24 know, a 60-year period is a long period of record 25 and it could allow diversions to exceed the historic Mile High Court Reporting and Video, Inc. 303-202-0210 contact@milehighreporting.com Concerning the Application of: Busk-Ivanhoe, Inc. July 26, 2013 - Volume IV 810 1 average for a long period of time within the 2 60 years and then be less than the historic over a 3 long period of time for the rest of the 60 years. 4 And that may not replicate history, so 5 we pick a shorter time period, in this case, 6 20 years, and what we do, if you can scroll up -- 7 and that's shown in this right-hand column -- is 8 that we look historically at the 20-year cumulative 9 diversion. 11:15 10 So if you could scroll up just -- there 11 we go. 12 and it doesn't start until 1944 and it's the total 13 diversions from 1944 all the way up to 1925, and 14 then each year we calculate in this table a new 15 20-year average that drops, you know, the furthest 16 removed year, the year that's now 21 years ago, and 17 adds the current year. So this is the 20-year cumulative diversion 18 19 11:16 20 21 22 So in this way you can track what was the maximum amount that was diverted based upon our analysis of the transferable yield in any consecutive 20-year period. Q. And you touched on an important point: 23 Is it true that each of these limits resets on an 24 annual basis for another cumulative period going 25 forward? Mile High Court Reporting and Video, Inc. 303-202-0210 contact@milehighreporting.com Concerning the Application of: Busk-Ivanhoe, Inc. July 26, 2013 - Volume IV 811 1 A. Yes, that's correct. 2 Q. Then talk about the 10-year proposal and 3 4 its purpose. A. If I may just real quick to finish up 5 with the 20-year column, so the maximum historic 6 20 consecutive years -- the maximum amount 7 historically diverted in our analysis in any 8 20 consecutive years was 46,474 acre feet, and if 9 you can scroll up just a little ways, right there, 11:17 10 that was for the year that ended in 1981. And so that was essentially the 11 12 cumulative diversion of the years 1962 through 1981 13 that added up to that 46,474, so that's the most 14 that was diverted and lawfully and beneficially used 15 over a consecutive 20-year period in the past, and 16 we're just proposing they shouldn't use more than 17 that in a consecutive 20-year period in the future. 18 19 11:17 20 21 Q. So the cumulative periods are actually tied to historical cumulative periods? They're not in any way synthesized? A. No. I mean, they're synthesized but 22 based upon the historical analysis, and the very 23 purpose of the volumetric limits is to allow someone 24 to divert what was taken historically but to fashion 25 terms in a decree that limit that diversion over Mile High Court Reporting and Video, Inc. 303-202-0210 contact@milehighreporting.com Concerning the Application of: Busk-Ivanhoe, Inc. July 26, 2013 - Volume IV 812 1 various time periods to no more than was converted 2 historically. 3 4 5 Q. Well, then, quickly, let's talk about the 10-year limit. A. The 10-year limit that we proposed is 6 simply half of the 20-year limit, and so the 20-year 7 limit was 46,474. 8 just in order to ensure that there's a limit for the 9 first several years of the decree instead of having 11:18 10 11 12 We propose 23,237, and that's to go 20 years out and not really reach your first volumetric limit until then. Q. Then did you have an opinion about 13 whether these volumetric limitations are necessary 14 for the Court to decree and why? 15 A. I believe these volumetric limits are 16 necessary and appropriate to include in the decree 17 to prevent more water from being diverted in the 18 future than was beneficially and lawfully used in 19 the past. 11:19 20 Q. Next, Mr. Sayler, did you and your firm 21 evaluate the impacts of the proposed change of water 22 rights on water supply conditions and water rights 23 within the Colorado River Basin? 24 A. Yes, we did. 25 Q. I guess what I'm referring to -- did you Mile High Court Reporting and Video, Inc. 303-202-0210 contact@milehighreporting.com Concerning the Application of: Busk-Ivanhoe, Inc. July 26, 2013 - Volume IV 813 1 evaluate the potential for injury from this change 2 of water rights within the Colorado River Basin? 3 A. We did. 4 Q. And you were here and heard Mr. Kuhn's 5 testimony? 6 A. I did. 7 Q. Can you, and if necessary, with relation 8 to WSO Exhibit 80, briefly identify water-right 9 operations or water rights that are related to your 11:20 10 11 analysis of potential injury on the west slope? A. Yes, and I'll try to go through this 12 quickly, but as Mr. Kuhn and, I think, Ms. Wynne 13 discussed, this area in light blue, if you will, is 14 the Colorado River main-stem basin, and some 15 relevant things to point out are that, within the 16 Colorado River Basin, there's essentially two 17 administration points or dry-up points, as you will. 18 19 11:21 20 That, when flows start to decrease and we get to a situation where there isn't adequate water supply, those become the control points and 21 the water rights located at those points can dry the 22 river up and then a call is placed at varying 23 priority dates to call for enough water after that 24 dry-up point and make sure that it's satisfied. 25 And those dry-up points that Mile High Court Reporting and Video, Inc. 303-202-0210 contact@milehighreporting.com Concerning the Application of: Busk-Ivanhoe, Inc. July 26, 2013 - Volume IV 814 1 predominantly control the Colorado River occur here 2 at the Shoshone Power Plant just, essentially, at 3 the entrance of Glenwood Canyon. 4 Roaring Fork and Glenwood Springs would be right 5 here at the confluence of the Roaring Fork and the 6 Colorado. This is -- the So the first controlling right is the 7 8 Shoshone Power Plant or the Shoshone call, and the 9 second controlling right is the group of water 11:22 10 rights that exist and divert from two different 11 points below the Cameo, which is located down here. 12 That includes the Government High Line, 13 the Grand Valley Irrigation Canal, the Orchard Mesa. 14 Those collectively are referred to as the Cameo 15 water rights and they dry up the river when flows 16 drop down low enough and place an administrative 17 call that is administered here at Cameo. 18 19 11:22 20 21 Q. And what type of west-slope rights are subject to calls by these two controlling structures? A. I mean, any water rights that are junior 22 to these structures, and Shoshone, as Mr. Kuhn 23 testified to, Shoshone has two water rights that 24 total 1,408 cfs that go back to approximately the 25 turn of the century, the 1900 plus or minus, and Mile High Court Reporting and Video, Inc. 303-202-0210 contact@milehighreporting.com Concerning the Application of: Busk-Ivanhoe, Inc. July 26, 2013 - Volume IV 815 1 that's a very senior water right on the west slope. And so obviously that can control all of 2 3 the junior water rights located in the basin above 4 Shoshone, and the Cameo water rights add up to 2,260 5 cfs, although the call typically now is limited to 6 1,950, which I think Mr. Kuhn testified to, and 7 those water rights -Many of them are senior to the 8 9 Busk-Ivanhoe. Some of them are junior to the 11:23 10 Busk-Ivanhoe, but they can call out any structures 11 and water rights located in this entire portion of 12 the basin above Cameo. 13 Q. Have you formed opinions regarding 14 whether and how the results of this change of water 15 rights might cause injury to western-slope water 16 rights? 17 A. Yes, I have. 18 Q. Did you previously identify those in 19 11:24 20 21 reports you submitted? A. We identified those types of injury in our March 2013 report. 22 Q. 23 identify? 24 A. 25 Yes, I did. How many types of injury did you Well, I categorized it into three general categories of types of injury. Mile High Court Reporting and Video, Inc. 303-202-0210 contact@milehighreporting.com Concerning the Application of: Busk-Ivanhoe, Inc. July 26, 2013 - Volume IV 816 1 2 3 Q. Can you identify the first type of injury and explain it? A. Sure. The first type of injury will 4 occur -- and all of these are types of injury that 5 can occur if the Busk-Ivanhoe water rights are 6 enlarged and expanded. 7 would otherwise be available here at the Cameo Call. MR. KRASSA: 8 9 11:25 10 They take away water that Your Honor, before the witness continues, I was just looking at his March report and I don't find any foundational material in 11 there whatsoever to support the conclusionary 12 comments that he's just been providing. 13 no tables that show the dates or quantities of water 14 rights. 15 There are There's nothing to show how many times 16 they're in or out of priority or to what extent they 17 depend on the water supply, and without that 18 foundation this material should not be permitted. 19 11:25 20 MR. HALLFORD: Your Honor, we do have testimony from Mr. Kuhn about his knowledge of the 21 relative seniority of water rights upstream of Cameo 22 and upstream of Shoshone and also from Mr. Sayler. 23 An alternative would have been an extensive analysis 24 of the tabulation of water rights and which are 25 senior and which are junior or the submission of the Mile High Court Reporting and Video, Inc. 303-202-0210 contact@milehighreporting.com Concerning the Application of: Busk-Ivanhoe, Inc. July 26, 2013 - Volume IV 817 1 tabulation of water rights in Division 5 to 2 demonstrate that point. 3 MR. KRASSA: 4 In fact, Your Honor, I asked Ms. Wynne -- 5 THE COURT: 6 MR. KRASSA: 7 THE COURT: 8 MR. HALLFORD: 9 11:26 10 I'm sorry. Just a second. Sorry. Were you finished? And I think that, for our purposes -- and certainly the objection goes more to weight than to admissibility and it is subject to 11 cross-examination as to which water rights could be 12 affected -- but I think that there will be 13 discussion about that and the relative seniority of 14 water rights, but I think the objection is, if 15 anything, premature. 16 THE COURT: 17 MR. KRASSA: Mr. Krassa? Your Honor, foundation 18 objections do not just go to weight. 19 admissibility, and, of course, that dividing line is 11:27 20 They go to in the discretion of the Court, but I point out 21 that, during Ms. Wynne's cross-examination, I asked 22 her whether it wasn't true that the Cameo group of 23 water rights had a number of separate water rights 24 and priorities in addition to the 1902 priority that 25 had been mentioned. Mile High Court Reporting and Video, Inc. 303-202-0210 contact@milehighreporting.com Concerning the Application of: Busk-Ivanhoe, Inc. July 26, 2013 - Volume IV 818 She didn't know the answer to that. 1 I 2 don't find it in their report, and neither Mr. Kuhn 3 or Mr. Sayler have mentioned that, and those are 4 essential aspects of the foundation for the type of 5 testimony that is being elicited from Mr. Sayler. THE COURT: 6 Mr. Hallford, I'm going to 7 sustain the objection at this point unless you lay a 8 further foundation for this opinion. MR. HALLFORD: 9 11:27 10 11 Applicant's burden to show no injury, but I will address that with Mr. Sayler. 12 THE COURT: 13 witness this question. 16 Well, you're asking the MR. HALLFORD: 14 15 It is, of course, the Q. Correct. (By Mr. Hallford) Mr. Sayler, you are familiar with the Shoshone Power Plant water rights? 17 A. Yes, I am. 18 Q. And in what contexts are you familiar 19 11:28 20 with them? A. Much of the work that I do involves, for 21 example, with Middle Park Water Conservancy 22 District, involves monitoring the administration and 23 the calls of water rights on the Colorado River, 24 which I get e-mailed to me on a daily basis from the 25 Division 5 Engineer's office, in order to determine Mile High Court Reporting and Video, Inc. 303-202-0210 contact@milehighreporting.com Concerning the Application of: Busk-Ivanhoe, Inc. July 26, 2013 - Volume IV 819 1 when, for example, clients of mine need to release 2 augmentation water from storage for augmentation 3 plans due to the Shoshone call or due to the Cameo 4 call. So I'm very familiar with the 5 6 administration of the water rights on the Colorado 7 and familiar with those specific water rights at 8 Shoshone and at Cameo. 9 11:29 10 11 Q. And are you familiar with the water-rights priorities at Green Mountain Reservoir and at Dillon Reservoir? 12 A. Yes, I am. 13 Q. And how are you familiar with that? 14 A. Again, both of those reservoirs are 15 located within Middle Park, but oftentimes -- well, 16 I do a lot of work in Summit County. 17 work in the Middle Park area, and those water 18 rights, Dillon and Green Mountain and what we've 19 referred to collectively as the Blue River decree in 11:29 20 I do a lot of that example, factor into, on a daily basis, the 21 administration of other water rights within the Blue 22 River Basin. 23 Q. Are the water rights for those 24 facilities senior or junior in relation to the 25 Shoshone Power Plant water rights? Mile High Court Reporting and Video, Inc. 303-202-0210 contact@milehighreporting.com Concerning the Application of: Busk-Ivanhoe, Inc. July 26, 2013 - Volume IV 820 1 2 A. Shoshone Power Plant. 3 4 Q. How about their priority relationship with the Cameo water rights? 5 6 Those water rights are junior to the A. Junior to most of the Cameo water rights, yes, junior to the Cameo water rights. 7 Q. Are you familiar with the priorities at 8 the Colorado Big Thompson, western-slope diversions 9 and storage facilities, other than Green Mountain 11:30 10 Reservoir? 11 A. Yes. I mean, that's the Granby 12 Reservoir and the CBT water rights located in this 13 area in the Upper Colorado. 14 15 Q. How are you familiar with those water A. I've worked for a number of clients who rights? 16 17 own CBT water on the east slope now in the South 18 Platte River Basin. 19 water under the CBT water rights. 11:31 20 I monitor the diversions of In terms of the Granby Reservoir, on a frequent basis, in order 21 to -- and the quotas that they set in order to 22 essentially advise clients as to the status of, for 23 example, the yield of those water rights in a given 24 year. 25 In working for the Middle Park Water Mile High Court Reporting and Video, Inc. 303-202-0210 contact@milehighreporting.com Concerning the Application of: Busk-Ivanhoe, Inc. July 26, 2013 - Volume IV 821 1 Conservancy District, a significant portion of 2 Middle Park's water supplies is 3,000 acre feet 3 owned of Windy Gap water, which is operated by the 4 municipal subdistrict of the Northern Colorado Water 5 Conservancy District. The Northern District is the same entity 6 7 that operates the CBT project and that Middle Park 8 water is stored -- pumped from the Windy Gap pumps 9 and stored in Granby Reservoir and subject to spill 11:31 10 if the CBT water fills up. So that's another example of why I have 11 12 a lot of contact with Northern regarding releasing 13 Middle Park water from Granby Reservoir when needed 14 for Middle Park contractees and monitor the status 15 of the CBT project, just to know whether or not 16 there will be storage available for Windy Gap in a 17 given year. 18 19 11:32 20 21 Q. And what is the priority relationship between those Colorado Big Thompson and municipal subdistrict water rights with the Shoshone Power Plant and the Cameo water rights? 22 A. Junior. Junior to those, yes. 23 Q. Are you familiar with any water uses in, 24 say, the Eagle River Basin that are junior in 25 priority to the Shoshone Power Plant water rights? Mile High Court Reporting and Video, Inc. 303-202-0210 contact@milehighreporting.com Concerning the Application of: Busk-Ivanhoe, Inc. July 26, 2013 - Volume IV 822 A. 1 I've worked for clients in the Eagle 2 River Basin that have owned water rights that are 3 both junior and some senior to the Shoshone Power 4 Plant. 5 6 7 8 9 Q. And are any of those water rights junior in priority to the Cameo water rights? A. Yes, some of them are junior and some of them are senior to the Cameo water rights. Q. And then, in the Roaring Fork Basin, are 11:33 10 you familiar with western-slope water rights that 11 are junior in priority to the Cameo water rights? 12 A. Within the Roaring Fork Basin? 13 Q. Yes, sir. 14 A. Yes, very much so. 15 MR. KRASSA: Your Honor, I'm going to 16 renew my objection -- and perhaps we could save a 17 little bit of time. 18 water rights he's familiar with but we don't have 19 the information. 11:33 20 We're going through a lot of And I'm not going to stand up here and 21 say he has to have done a complete numerical 22 analysis just in order to present some opinion 23 testimony, but he elected in the preparation of his 24 report not to provide a table that showed the 25 priority dates and quantities of the rights that he Mile High Court Reporting and Video, Inc. 303-202-0210 contact@milehighreporting.com Concerning the Application of: Busk-Ivanhoe, Inc. July 26, 2013 - Volume IV 823 1 thought were going to be injured or which might 2 cause injury. And without that, we can't evaluate the 3 4 significance of what he's saying because this is not 5 the simple kind of injury that might arise in a 6 water-court case where somebody really was 7 increasing the amount of water they diverted. 8 This is a case which is much more 9 11:34 10 complicated, as the Court has observed, and relates to a great degree to the principle that junior water 11 rights are subject to conditions on the stream as 12 they were when those rights came to the stream. 13 So the amount and priority dates of 14 rights on the western slope senior to 1928, which 15 was the Busk-Ivanhoe decree, are very important, and 16 the rights that could be affected but that are 17 junior to 1928 are also important. And without having that table in his 18 19 11:35 20 21 report or admitted as an exhibit, I don't see how he can provide the foundation necessary to support the testimony that he's trying to give. THE COURT: 22 23 The objection will be overruled. Proceed, Mr. Hallford. 24 25 Thank you, Mr. Krassa. Q. (By Mr. Hallford) To continue your Mile High Court Reporting and Video, Inc. 303-202-0210 contact@milehighreporting.com Concerning the Application of: Busk-Ivanhoe, Inc. July 26, 2013 - Volume IV 824 1 answer, are you familiar with water rights, say, at 2 Ruedi Reservoir and their relative priority to the 3 Cameo water rights? 4 5 6 7 8 9 11:35 10 11 A. Yes, I am, and the Ruedi Reservoir water rights are junior to the Cameo water rights. Q. And what's their priority relationship to the Busk-Ivanhoe system water rights? A. They're junior to the Busk-Ivanhoe system water rights as well. Q. In Exhibit 9, WSO 9, your March report, did you discuss the Cameo water rights? 12 A. Yes, I did. 13 Q. And if we can bring it up in a fashion 14 that can be read, unless you want to look at the 15 report before you, I'm directing your attention to 16 page 16 of a letter addressed to myself and others 17 dated March 19th, 2013. 18 document? 19 A. Yes, I do. 11:36 20 Q. And on this page of this report -- it Do you recognize this 21 actually starts on the prior page, 15, with 22 Section 9, "Potential West-slope Injury," correct? 23 A. That's correct. 24 Q. And then you have your first bullet. 25 What does the first bullet on page 16 address? Mile High Court Reporting and Video, Inc. 303-202-0210 contact@milehighreporting.com Concerning the Application of: Busk-Ivanhoe, Inc. July 26, 2013 - Volume IV 825 1 A. The first bullet addresses "Continuing 2 expanded diversions of B-I water rights during times 3 of a bypass call to the Colorado River water rights 4 located below Cameo." 5 6 7 Q. Then the next bullet, what does it discuss? A. I should point out here that I think 8 there's a word missing that I just noticed, but this 9 is talking about bypass calls to the Colorado River 11:37 10 11 water rights located below at Cameo, or bypass calls to the Cameo water rights. 12 Q. Okay. 13 A. Not water rights below Cameo, but a 14 15 16 bypass call to the Cameo water rights. Q. Then, in the second bullet, you identify other west-slope water rights? 17 A. Yes, I do. 18 Q. And specifically you mention the Green 19 11:38 20 21 22 Mountain Reservoir Historical Users Pool. Can you tell us how you are familiar with that pool and that reservoir? A. I'm very familiar with the Historic 23 Users Pool. It's essentially a pool in Green 24 Mountain Reservoir that is a component of the 25 portion of the reservoir that was constructed for Mile High Court Reporting and Video, Inc. 303-202-0210 contact@milehighreporting.com Concerning the Application of: Busk-Ivanhoe, Inc. July 26, 2013 - Volume IV 826 1 compensatory storage for west-slope users. And what we refer to as the "HUP" is the 2 3 Historic Users Pool that, when the Shoshone call 4 comes on or when the Cameo call comes on, it allows 5 water rights senior to 1977, that were perfected by 6 1977, on the west slope, anywhere within the basin, 7 essentially to continue to divert. And the water is then released to 8 9 11:39 10 replace the depletions from those diversions from the Historic Users Pool to ensure that the calling 11 water rights at Shoshone and Cameo remain satisfied. 12 So the HUP is a very important component 13 of west-slope water rights in that it was the part 14 of or a big part of the CBT project that is intended 15 to protect from call certain senior water rights in 16 the Colorado River Basin that are senior to 1977. 17 Q. And, again, the Green Mountain Reservoir 18 water rights that provide for this pool are junior 19 in priority to the Shoshone Power Plant water rights 11:40 20 21 22 23 24 25 and Cameo irrigation water rights? A. Junior to both of those and junior to the Busk-Ivanhoe water rights, yes. Q. Is Green Mountain, at times, called out by those water rights? A. It can be and is in dry years. Mile High Court Reporting and Video, Inc. 303-202-0210 contact@milehighreporting.com Concerning the Application of: Busk-Ivanhoe, Inc. July 26, 2013 - Volume IV 827 Q. 1 Now, your third bullet, page 16, talks 2 about Ruedi Reservoir and downstream rights. 3 talked about your familiarity with Ruedi Reservoir. 4 Let's move on to the next page or down below. 5 That's the completion of your discussion of 6 potential west-slope impacts in your March report, 7 correct? 8 A. That's correct. 9 Q. Okay. 11:41 10 You've Then I would go back to the subject of your formation of opinions whether there 11 would be -- could be injury from the change of water 12 rights in this case to water rights on the western 13 slope. 14 correct? You said you had formed such opinions, 15 A. Yes. 16 Q. You said that you had formed three types 17 of opinions, correct? 18 A. That's correct. 19 Q. What is the first type of injury that 11:41 20 21 you have formed an opinion about? A. The first type is described in the first 22 bullet here, is the potential for injury to water 23 rights that are junior to the Cameo Call and, in 24 this instance, junior to Busk-Ivanhoe water that 25 would be located upstream from Cameo and would be Mile High Court Reporting and Video, Inc. 303-202-0210 contact@milehighreporting.com Concerning the Application of: Busk-Ivanhoe, Inc. July 26, 2013 - Volume IV 828 1 2 subject to a call from Cameo. And an enlargement of the Busk-Ivanhoe 3 water right or an expansion of the Busk-Ivanhoe 4 water right could increase that call, and what I'm 5 specifically talking about here in this first 6 example is that frequently that will be what we 7 refer to as a bypass call to Cameo. 8 9 11:42 10 And an example is the call situation that's been occurring just within the last few weeks on -- well, the last couple of weeks, anyway -- on 11 the Colorado River, and that is that there can be a 12 bypass call, for example, where Green Mountain 13 Reservoir has not filled up and it could be still 14 diverting and filling with water but Cameo suddenly 15 is not satisfied. 16 And so what happens is the specific call 17 doesn't come from the Cameo water rights themselves. 18 I mean, it does in terms of them placing the call, 19 but the priority date in that example is Green 11:43 20 21 22 Mountain Reservoir located up here on the Blue River above Kremmling. And what happens at that point is maybe 23 Green Mountain Reservoir has 500 cfs flowing into it 24 and Cameo is short a hundred cfs of water. 25 suddenly, Green Mountain has to store less and Then, Mile High Court Reporting and Video, Inc. 303-202-0210 contact@milehighreporting.com Concerning the Application of: Busk-Ivanhoe, Inc. July 26, 2013 - Volume IV 829 1 bypass a hundred of that 500 cfs of water coming 2 into it to make sure that Cameo stays satisfied. And that's what I mean by a bypass call, 3 4 and in that instance, the call is placed with the 5 Green Mountain priority and all junior water rights 6 are shut down above Cameo that are junior to Green 7 Mountain. 8 And in an example like a very dry year, 9 if Green Mountain doesn't fill, then that expansion 11:44 10 of use of Busk-Ivanhoe water would directly take 11 away from how much water Green Mountain would fill 12 with because it would have to bypass more down to 13 Cameo. 14 Q. In that instance, the Green Mountain 15 storage would be reduced because of Busk-Ivanhoe 16 system diversion? 17 A. Yes, if Busk-Ivanhoe has taken five cfs 18 of enlarged use, that would be five cfs less water 19 at Cameo, and, if the bypass call or what Division 5 11:45 20 sometimes refers to as the swing right, was Green 21 Mountain Reservoir, then the net effect would be 22 Green Mountain Reservoir on that date would get five 23 cfs less. 24 25 So that's one way that the west slope can be injured. It could apply similarly to other Mile High Court Reporting and Video, Inc. 303-202-0210 contact@milehighreporting.com Concerning the Application of: Busk-Ivanhoe, Inc. July 26, 2013 - Volume IV 830 1 junior water rights, like Wolford Mountain 2 Reservoir, if that was the swing right. 3 4 5 Q. What is the second type of injury that you identified? A. The second type is the injury 6 specifically to the Historic Users Pool that could 7 occur due to increase demand, if you will, on the 8 Historic Users Pool. In that example, you could go back to 9 11:45 10 Green Mountain Reservoir and you could say, even if 11 Green Mountain Reservoir filled that year and the 12 Historic Users Pool was fully supplied, and later on 13 in the year the Cameo Call comes on, and if an 14 enlargement of Busk-Ivanhoe water causes the Cameo 15 Call to come on sooner or to come on more severe, 16 that will cause a like amount of additional water to 17 be released from the HUP to protect those upstream 18 junior water rights on the Colorado River. And so, therefore, an enlargement of the 19 11:46 20 Busk-Ivanhoe water could result in an increased 21 draw-down of the HUP such that, in a very dry year, 22 the HUP could be exhausted, and that's the 23 replacement supply for the west slope or for a 24 number of water rights on the west slope. 25 Q. Could that occur in future years after Mile High Court Reporting and Video, Inc. 303-202-0210 contact@milehighreporting.com Concerning the Application of: Busk-Ivanhoe, Inc. July 26, 2013 - Volume IV 831 1 the year you were just referencing? 2 Mountain is full but carries over HUP water into 3 future years when Busk-Ivanhoe diversions occur in a 4 dry condition. 5 A. Sure. Say Green If Green Mountain, in one year, 6 was drawn down more because of an increased call due 7 to an expansion of the Busk-Ivanhoe, then there 8 would be less water carried over in the HUP to the 9 next year, and if the next year was a very dry year, 11:47 10 11 12 it may be less likely to fill because of that enlargement of use? Q. In that situation, then, the 13 Busk-Ivanhoe system water rights would benefit from 14 the HUP? 15 A. The way I looked at it is that the HUP 16 would be injured because it would be drawn down 17 further than it should have been, but I don't think 18 it's inaccurate to turn that around and say, in that 19 instance, because the HUP is releasing the amount of 11:48 20 water that is necessary to keep the water rights at 21 Cameo whole, that Busk-Ivanhoe would be benefiting 22 incorrectly from the HUP. 23 Q. Do you have knowledge from your 24 experience about how frequently the HUP supply is 25 utilized in the manner that you've described? Mile High Court Reporting and Video, Inc. 303-202-0210 contact@milehighreporting.com Concerning the Application of: Busk-Ivanhoe, Inc. July 26, 2013 - Volume IV 832 A. 1 Historically, it doesn't get exhausted 2 often. 3 2002, in those types of years, yes, it's essentially 4 drawn down completely. 5 If it's a severe drought year, like 1977 or Q. Okay. Now, finally, what is the third 6 type of injury that you identified in regard to the 7 Busk-Ivanhoe-system-water-rights change? 8 9 11:49 10 A. The third type is more of a direct injury to water rights within, for example, the Roaring Fork Basin that are junior to the 11 Busk-Ivanhoe water rights, and an example that I 12 used here, not in my report, would be Ruedi 13 Reservoir. If you have a year like this year where 14 15 Ruedi Reservoir does not fill -- and, granted, Ruedi 16 Reservoir has east-slope and west-slope benefits, 17 but part of that is west-slope water -- and if you 18 have a year where Ruedi Reservoir does not fill and 19 it's junior to the Busk-Ivanhoe water and the 11:49 20 Busk-Ivanhoe has enlarged its use as a senior water 21 right upstream, that results in injury to the 22 downstream junior water right, in this example, 23 Ruedi Reservoir. 24 Q. 25 To your knowledge, have there been years in which Ruedi Reservoir has not filled? Mile High Court Reporting and Video, Inc. 303-202-0210 contact@milehighreporting.com Concerning the Application of: Busk-Ivanhoe, Inc. July 26, 2013 - Volume IV 833 1 2 3 A. Yes, there have, and this year is an example where Ruedi has not filled. Q. Thank you, Mr. Sayler. Now, we've 4 covered a lot of ground and we're almost finished. 5 You've authored the two reports, WSO Exhibits 9 and 6 10, correct? 7 A. That's correct. 8 Q. From the preparation of your testimony 9 11:50 10 11 12 and what you've related to the Court, have you related essentially the contents of your report to the Court in your testimony? A. I think we have. I think there's, for 13 example, a map of the Busk-Ivanhoe system within our 14 report that's been discussed as other exhibits, but 15 otherwise, yes, we've covered everything within our 16 report. 17 18 19 11:51 20 21 Q. Is that map of the Busk-Ivanhoe system accurate and was it prepared by your staff? A. Yes, I think it's similar to the other Busk-Ivanhoe map exhibit that's been testified to in this case. MR. HALLFORD: 22 Your Honor, we did admit 23 portions of Exhibit 9, the March 2013 report, 24 yesterday. 25 entirety of the Exhibits 9 and 10 reports into the At this point, I would ask to admit the Mile High Court Reporting and Video, Inc. 303-202-0210 contact@milehighreporting.com Concerning the Application of: Busk-Ivanhoe, Inc. July 26, 2013 - Volume IV 834 1 record. MR. HAMRE: 2 Your Honor, the testimony a 3 moment ago was that we've already covered what's in 4 those reports. 5 engineering reports were kept out completely on the 6 basis of hearsay. 7 where they all came in. 11:51 10 11 I've been in other water cases I think we just ought to be consistent. 8 9 I've been in water cases where If we want to put all the reports in evidence, I can live with that, or we should apply the same rule across the board. MR. HALLFORD: 12 Your Honor, I'm simply 13 thinking of the Court's convenience and desire. 14 you don't wish to have the reports admitted, that's 15 acceptable. 16 for future relationship, including the reports 17 authored by Mr. Bethel, that's acceptable. 18 19 11:52 20 21 If If you wish to have them in evidence But if you want to adhere to a different evidentiary protocol, that's your choice. I'm not going to be upset. MR. KRASSA: Your Honor, he has, I 22 think, covered everything in his report that I'm 23 aware of other than there is a discussion about the 24 duty of water in his report that he has not 25 addressed and that is objectionable, so I would have Mile High Court Reporting and Video, Inc. 303-202-0210 contact@milehighreporting.com Concerning the Application of: Busk-Ivanhoe, Inc. July 26, 2013 - Volume IV 835 1 no objection to the admission of his report with the 2 exception of the duty-of-water discussion. 3 MR. HALLFORD: 4 MR. KRASSA: The what? Duty-of-water discussion. 5 There's a section where he discusses the 50 acres of 6 the cfs provisions in the decree that adjudicated 7 the Busk-Ivanhoe rights and I'm not sure what he was 8 planning to do with that. 9 whether he had applied that to his water budget 11:53 10 I asked him earlier model and he said no, so I don't know what, if 11 anything, he's done with that, but that has not been 12 covered. THE COURT: 13 And, Mr. Krassa, 14 Mr. Hallford's last statement was to the effect that 15 he had no objection to Mr. Bethel's reports coming 16 in and Mr. Sayler's reports coming in, just so long 17 as they all came in. MR. HALLFORD: 18 19 11:53 20 that Mr. Bethel's report was admitted into evidence partially. 21 THE COURT: 22 MR. GROSSCUP: 23 THE COURT: 24 MR. HALLFORD: 25 Your Honor, I'm informed Partially. Partially. Part of it was, so . . . And I have no objection to a deletion of the portion that Mr. Krassa has Mile High Court Reporting and Video, Inc. 303-202-0210 contact@milehighreporting.com Concerning the Application of: Busk-Ivanhoe, Inc. July 26, 2013 - Volume IV 836 1 identified that has not been the subject of 2 testimony from our report. 3 THE COURT: Okay. Ms. Ryan? 4 MS. RYAN: No objection. 5 THE COURT: All right. Exhibits WSO 9 6 and 10 will be admitted as well as Mr. Bethel's 7 reports, which are -- 8 MR. HAMRE: A-121 and 122, Your Honor. 9 THE COURT: A-121 and 122? 11:54 10 MR. HAMRE: That's correct. 11 THE COURT: Thank you. The portion 12 regarding the duty of water that's contained in 13 Mr. Sayler's report will not be considered. 14 MR. KRASSA: 15 THE COURT: 16 of Mr. Hallford. 19 11:54 20 Based upon the stipulation Thank you. MR. HALLFORD: 17 18 Thank you. Q. Thank you, Your Honor. (By Mr. Hallford) Now, finally, Mr. Sayler, have you considered terms and conditions that you believe in your professional opinion are 21 needed to prevent injury in this change of water 22 rights? 23 A. Yes, I have. 24 Q. What is your first opinion? 25 A. My first opinion is that the Mile High Court Reporting and Video, Inc. 303-202-0210 contact@milehighreporting.com Concerning the Application of: Busk-Ivanhoe, Inc. July 26, 2013 - Volume IV 837 1 transferable historical use -- or that the 2 transferable use of the Busk-Ivanhoe, Inc., water 3 rights subject to this case should be limited to the 4 amounts that we've quantified that were historically 5 and lawfully used for beneficial purposes. 6 Q. What is your second opinion? 7 A. That the diversion period should be 8 limited to the March-16th-through-November-14th 9 period of irrigation use. 11:55 10 Q. What is your next opinion? 11 A. That the volumetric limits should be 12 limited to the maximum year, 60-year, 20-year, and 13 10-year limits that were presented in Exhibit -- 14 Q. 12? 15 A. I believe 10-C. 16 Q. Oh, it's Table 12, Exhibit 10-C. 17 A. I'm confirming that quickly. 18 Q. It is Exhibit 10-C as portrayed on the 19 11:56 20 21 22 projector? A. Yes, that's correct. MR. HALLFORD: further questions for this witness. 23 THE COURT: 24 MR. HALLFORD: 25 Your Honor, I have no Thank you. And it's conveniently near noon and I mis-shot my objective maybe -- Mile High Court Reporting and Video, Inc. 303-202-0210 contact@milehighreporting.com Concerning the Application of: Busk-Ivanhoe, Inc. July 26, 2013 - Volume IV 838 1 THE COURT: 2 MR. HALLFORD: 3 THE COURT: 4 MR. HALLFORD: 5 THE COURT: By two hours. -- an hour and a half. Okay. I had help. We'll take the lunch recess 6 at this point. 7 we'll get started as quickly as we can at that 8 point. If you'll be back at 1:15, 1:20, Thank you, Counsel. 9 (Recess taken.) 13:25 10 THE COURT: We're back on the record on 11 2009CW142. 12 Mr. Sayler is on the stand for cross-examination. The parties and counsel are present and 13 Ms. Ryan? 14 MS. RYAN: 15 THE COURT: Mr. Krassa and Mr. Hamre? 16 MR. HAMRE: We'll stick with the 17 original batting order. 18 MR. KRASSA: 19 13:25 20 21 24 25 Your Honor, that means Mr. Hamre is going to correct or mistake any omissions that I make, so it's a very relaxing situation. 22 23 No questions, Your Honor. CROSS EXAMINATION BY MR. KRASSA: Q. Mr. Sayler, you testified in regard to your conclusionary exhibits that really there were Mile High Court Reporting and Video, Inc. 303-202-0210 contact@milehighreporting.com Concerning the Application of: Busk-Ivanhoe, Inc. July 26, 2013 - Volume IV 839 1 minimal engineering differences between you and 2 Mr. Bethel. Do you recall that? 3 A. Yes, I do. 4 Q. Is it accurate to say, by way of 5 summary, that the principal differences between you 6 and Mr. Bethel are the legal positions that have 7 directed your work? 8 9 13:26 10 A. I guess I would represent our differences in terms of the transferable yield of the water right and that Mr. Bethel includes storage 11 uses and excludes from the period of record 12 undecreed municipal uses. 13 14 15 16 Q. Which you exclude because you don't think those are lawfully transferable uses, correct? A. I included both of those uses in our period of record. 17 Q. Yes. 18 A. But then deducted the diversions of 19 13:26 20 Busk-Ivanhoe water by those uses. Q. Right. Okay. There were a number of 21 issues that I addressed first with Ms. Wynne and 22 then perhaps with you. 23 compilation of free-river days. One of them was the Do you recall? 24 A. I do recall, yes. 25 Q. And the use of the free-river-day table Mile High Court Reporting and Video, Inc. 303-202-0210 contact@milehighreporting.com Concerning the Application of: Busk-Ivanhoe, Inc. July 26, 2013 - Volume IV 840 1 that originated with Mr. Tyner synthesized the 2 record back to 1925, as I recall, and we had some 3 discussion about that. Do you recall that? 4 A. I do recall that, yes. 5 Q. And as I recall your answer on the voir 6 dire about that exhibit, it was that, for the 7 purposes for which you were doing your work in this 8 case, it was acceptable because you were simply 9 looking for long-term averages; is that correct? A. 13:28 10 Are you referring to the extension of 11 the call analysis to the period of 1925 through 12 1949? 13 Q. Yes, I am. 14 A. Yes, that's correct. 15 Q. And I think I asked you about the effect 16 of climatic variations and I think your response was 17 the period of record was long enough to include a 18 variety of climatic circumstances; is that correct? 19 13:28 20 21 A. I'm not sure if -- I don't recall talking about climatic circumstances. Q. Well, let me ask you that question then: 22 Wasn't the period from 1900 to maybe 1930 a wetter 23 period than we had subsequently? 24 A. From 1900 to 1930? 25 Q. Right. Mile High Court Reporting and Video, Inc. 303-202-0210 contact@milehighreporting.com Concerning the Application of: Busk-Ivanhoe, Inc. July 26, 2013 - Volume IV 841 1 A. Compared to -- what period do you mean 2 by subsequently? 3 Q. From the dust bowl going forward, we've 4 had a few wet times but we've had some pretty dry 5 times as well and the long-term average -- hasn't it 6 been drier since 1930 than it was before 1930? A. 7 I haven't looked at that specifically in 8 this application but I think that that's not 9 necessarily the case. 13:29 10 For example, there were many wet years in the 1920s. There were wet years in the 11 1930s. 12 period also goes into the 1940s, and there were wet 13 years and dry years during that period of time. 14 There were also dry years and that extension Q. Okay. But if I understand your position 15 on all this, it is that the fact that you didn't 16 look carefully at the climate and that you used 17 these averages was sufficient for the work at hand, 18 which was simply to determine the times when there 19 was surplus water available to the High Line Canal; 13:30 20 21 is that right? A. I think what I testified my opinion was 22 was that the period after 1950 gives us a 23 representative average of how frequently the call 24 occurred and that the period that could be applied 25 to the period before 1950 for purposes of Mile High Court Reporting and Video, Inc. 303-202-0210 contact@milehighreporting.com Concerning the Application of: Busk-Ivanhoe, Inc. July 26, 2013 - Volume IV 842 1 determining the amount of days of free river before 2 1950 -- 3 Q. Okay. 4 A. -- on an average basis. 5 Q. And you also testified that the travel 6 time from the tunnel to the High Line head gate did 7 not need to be taken into account in determining 8 whether the High Line needed water at the time the 9 water came through the tunnel because the length of 13:31 10 time of a free-river episode was typically somewhat 11 12 longer than the travel time. A. I think that -- can you ask me the 13 question again? 14 was a long question. 15 Q. Do you recall that? I'm sorry. I lost the train. It Yeah, I'll try to refresh your 16 recollection of the testimony a little better. 17 asked you during voir dire whether you had taken the 18 travel time into consideration in assigning -- in 19 correlating water coming through the tunnel with 13:31 20 21 I days when the High Line had excess water. And as I recall, your answer was that, 22 because the travel time was six days and the typical 23 duration of a free-river or surplus-water episode 24 was at least 12 or 14 days, that the travel time did 25 not need to be taken into account to derive the Mile High Court Reporting and Video, Inc. 303-202-0210 contact@milehighreporting.com Concerning the Application of: Busk-Ivanhoe, Inc. July 26, 2013 - Volume IV 843 1 2 averages that you were looking for. A. I'm sorry, Mr. Krassa, but I don't 3 recall testifying to the six days of travel time. 4 believe that was Ms. Wynne that testified to that. 5 Q. I If it was Ms. Wynne, would you agree 6 that, for the purposes for which you did your work, 7 that it would all roll into an average that would be 8 sufficient for the purpose? 9 13:32 10 A. I believe, as Ms. Wynne said, in comparing the days the water was taken through the 11 tunnel to the days of call, that the six-day travel 12 time that was discussed is a period that's shorter 13 than most of the call durations. 14 Q. Um-hum. 15 A. And that it would result, even if you 16 would have lagged it by six days, it would result in 17 six more days beyond the period that the call went 18 off that you should be reducing the diversions 19 through the tunnel, knowing that it would take it 13:33 20 21 22 six days to get down there and that that would balance out. Q. Would it typically have the opposite 23 effect at the beginning of the period of excess 24 water so that you just shift the whole thing by six 25 days and you would still have about the same result? Mile High Court Reporting and Video, Inc. 303-202-0210 contact@milehighreporting.com Concerning the Application of: Busk-Ivanhoe, Inc. July 26, 2013 - Volume IV 844 1 Is that what you're saying? A. 2 3 correct. Q. 4 5 I think, yes, I think that that's All right. During Mr. Kuhn's testimony -- you were present for that, as I recall. 6 A. Yes, I was. 7 Q. I asked Mr. Kuhn whether the 8 Busk-Ivanhoe system diverted all water physically 9 available to it between 1928 and the present time, 13:34 10 11 and his answer was in the affirmative. Do you agree with that? A. 12 I don't recall specifically. 13 the line of questioning. 14 what Mr. Kuhn's response was to it. Q. 15 I remember I don't recall exactly Let me ask you the question directly 16 then: 17 until the present time, has that system essentially 18 diverted all the water that was physically available 19 to it? 13:35 20 21 From the inception of the Busk-Ivanhoe system A. I don't think I can know that from the inception of the system in 1925. 22 Q. Have you studied the records? 23 A. I've studied the records and I know when 24 the water was diverted, but there is no record of 25 the amount of water that would have been available Mile High Court Reporting and Video, Inc. 303-202-0210 contact@milehighreporting.com Concerning the Application of: Busk-Ivanhoe, Inc. July 26, 2013 - Volume IV 845 1 on those streams for diversion by the Busk-Ivanhoe 2 so it's really impossible to say from the record if 3 all of the water was diverted or if it wasn't. Q. 4 Were you aware of any occasions when the 5 Busk-Ivanhoe right was curtailed under the priority 6 system? A. 7 The Busk-Ivanhoe water right would be 8 called out by certain of the Cameo rights and, in 9 fact, I think this year is a perfect example of 13:35 10 that. As of Wednesday, the Cameo water rights would 11 have called out the Busk-Ivanhoe system water rights 12 because there's a 1921 bypass call to Cameo, so 13 that's happening now. 14 Q. In your last two responses to me, you've 15 used the words "would have," and my questions is: 16 Are you aware of any instances where, in fact, the 17 Busk-Ivanhoe diversion was curtailed by operation of 18 the priority system? 19 13:36 20 A. And I'm sorry. poor choice of words. Maybe "would have" was a In fact, the Busk-Ivanhoe 21 water rights are subject to call on the Colorado 22 River today and I think those circumstances, yes, 23 have existed frequently in the past when there's 24 been a senior call at Cameo to the Busk-Ivanhoe 25 water rights. Mile High Court Reporting and Video, Inc. 303-202-0210 contact@milehighreporting.com Concerning the Application of: Busk-Ivanhoe, Inc. July 26, 2013 - Volume IV 846 1 Q. 2 question. 3 curtailed on any occasions as reflected by zeroes in 4 diversion records for days when they were out of 5 priority or by knowledge of events where the water 6 commissioner directed whoever operates the 7 Busk-Ivanhoe to cease diversions or anything like 8 that? 9 actually happened? 13:37 10 But were they actually curtailed is my Do you know whether they were actually Are you aware of any instances where it A. They were called out and I would assume 11 that they were curtailed, but based upon review of 12 the record, because Busk-Ivanhoe includes 1200 acre 13 feet in storage on the west slope -- 14 Q. Um-hum. 15 A. -- even if they're called out by Cameo, 16 what should be happening is that the ditches should 17 be getting shut down in the Busk-Ivanhoe system, but 18 water that had been previously stored in the 19 Busk-Ivanhoe Reservoir could still be diverted 13:37 20 21 through the tunnel. And, unfortunately, the only record that 22 we have is of the diversion through the tunnel, so 23 we really can't tell from the diversion through the 24 tunnel and from the records that are available, in 25 effect, if they were actually curtailed during those Mile High Court Reporting and Video, Inc. 303-202-0210 contact@milehighreporting.com Concerning the Application of: Busk-Ivanhoe, Inc. July 26, 2013 - Volume IV 847 1 times when they were called out, but I would assume 2 that they were. 3 Q. So, in answer to my question, whether 4 you're aware of any instances where the Busk-Ivanhoe 5 system was actually curtailed by operation of the 6 priority system, your answer is you're not aware of 7 any such specific instances, correct? 8 A. No, that's not my answer. 9 Q. Well, then -- 13:38 10 A. My answer is they're a water right that 11 12 13 has priorities that are junior to the call at Cameo. Q. answer my question with a yes or no. THE COURT: 14 15 16 I'm going to ask the Court to ask you to Rephrase your question, Mr. Krassa, or repeat it. Q. (By Mr. Krassa) Mr. Sayler, are you 17 aware of any instances, actual instances when 18 diversions by the Busk-Ivanhoe system were 19 curtailed, were actually curtailed by operation of 13:38 20 21 22 23 the priority system, yes or no? A. Mr. Krassa, you're giving me a question -THE COURT: 24 question if you can. 25 you can't answer it. Mr. Sayler, answer the If you can't answer it, say Mile High Court Reporting and Video, Inc. 303-202-0210 contact@milehighreporting.com Concerning the Application of: Busk-Ivanhoe, Inc. July 26, 2013 - Volume IV 848 1 2 A. It cannot be answered with the available Q. (By Mr. Krassa) data. 3 I'll move on then. 4 There was some discussion with Ms. Wynne and also 5 with you about the Cameo Call. 6 the Cameo Call and attributed a 1902 priority date 7 to it. 8 9 13:39 10 Ms. Wynne described Do you recall that? A. I do not recall the 1902 priority date, Q. And do you recall my asking Ms. Wynne no. 11 whether she would have the ability during the trial 12 to give us the priority dates and quantities of all 13 of the water rights that comprise the Cameo 14 diversion? 15 16 17 A. I recall some questioning. I can't recall if that was the exact question. Q. And then there was a bit of discussion 18 with you earlier today where I was objecting to lack 19 of foundation to your testimony about injury where I 13:40 20 also, in effect, asked whether you had a table 21 showing the priority dates and quantities of various 22 west-slope water rights. 23 And so that is my question to you right 24 now, Mr. Sayler, whether you can provide, either 25 from an accurate memory or from some document you Mile High Court Reporting and Video, Inc. 303-202-0210 contact@milehighreporting.com Concerning the Application of: Busk-Ivanhoe, Inc. July 26, 2013 - Volume IV 849 1 may have with you, what are the priorities and 2 quantities associated with the Cameo group of calls. A. 3 I can, just from memory, I can give you 4 the majority of that information. I'm not sure if 5 I've got it all, and I do have such a table that I 6 utilize in my work frequently, yes. 7 Q. But you don't have it with you? 8 A. I don't have it with me, no. 9 Q. So if you'll give it to us from your 13:40 10 memory, we'll take that into account. A. 11 Sure. The water rights add up to 2260 12 cfs and, working backwards, just because that's how 13 they call, is they run out of water, and as the 14 flows at Cameo drop down to 2260 cfs, then the first 15 call that comes on would be for a 119 cfs water 16 right. 17 And that is a 1941 priority date, but I 18 believe that it's administered with a 1937 19 administration number. 13:41 20 21 22 It's about 1937, and, for example, that right came on earlier this week, or that water right called earlier this week. Then, as the flows coming down the 23 Colorado River continue to decrease, the next water 24 right out of the Cameo group of water rights is a 25 water right for 730 cfs, and that has a 1908 Mile High Court Reporting and Video, Inc. 303-202-0210 contact@milehighreporting.com Concerning the Application of: Busk-Ivanhoe, Inc. July 26, 2013 - Volume IV 850 1 priority date that it's administered under. And so those two water rights comprise, 2 3 in my opinion, the two rights that, under most 4 conditions, typically will not be satisfied at Cameo 5 because that takes you down 849 cfs out of the 6 2,260. If the flows got so low on the Colorado 7 8 River that it went to the next call, the next call 9 would be the Orchard Mesa water right for 460 cfs, I 13:42 10 11 believe, and that's a water right that's senior to 1908. I can't recall its exact priority. 12 And so then you're up to 119 plus 730 13 plus 460 out of the 2260, and I don't think there 14 are situations where the call would go deeper than 15 that. 16 Q. Okay. So would you agree that the 1908 17 and calls senior to that are senior to the 18 Busk-Ivanhoe system? 19 13:43 20 21 A. The 1908, if it's the actual calling right, is senior to the Busk-Ivanhoe system. Q. And thereby is protected from anything 22 the Busk-Ivanhoe system might do by operation of the 23 priority system, assuming they take the trouble to 24 place the call and administer it? 25 A. If the 1908 water right is the calling Mile High Court Reporting and Video, Inc. 303-202-0210 contact@milehighreporting.com Concerning the Application of: Busk-Ivanhoe, Inc. July 26, 2013 - Volume IV 851 1 right, then, yes, it would be protected by calling 2 out the Busk-Ivanhoe system. 3 4 Q. Okay. And as to the 1941 right, that right is junior to the Busk-Ivanhoe system, correct? 5 A. That's correct. 6 Q. And so the Busk-Ivanhoe system was in 7 operation at the time that the 1941 right was 8 initiated, correct? 9 A. That's correct. 13:44 10 Q. All right. I'd like to go back to some 11 questions that I asked Ms. Wynne about who first 12 asserted, in your discussions between your clients 13 at the river district and attorneys for the 14 west-slope providers, who first asserted that 15 storage of the Busk-Ivanhoe water on the eastern 16 slope should not be counted or credited. 17 A. From my recollection, the first 18 discussions of it would have come after I had 19 reviewed the decrees and the background information 13:44 20 of the decrees, and Ms. Wynne probably reviewed it 21 as well, and we noted that there was no indication 22 that east-slope storage was provided for within the 23 decrees or within the statements of claim in the 24 background information. 25 Q. So this position originated with you or Mile High Court Reporting and Video, Inc. 303-202-0210 contact@milehighreporting.com Concerning the Application of: Busk-Ivanhoe, Inc. July 26, 2013 - Volume IV 852 1 2 Ms. Wynne as the engineers, correct? A. I think, in terms of our analysis, yes, 3 it originated with our review of those decrees. 4 That's correct. 5 Q. Okay. How about the legal position that 6 water applied after the beginning of the winter 7 water season should not be counted? 8 9 13:46 10 A. Well, I think that the basis for our opinion there, as we've talked about, was the fact that the decree says diversion for direct irrigation 11 purposes and that that, in my opinion, means within 12 the direct irrigation season, and I think a 13 reasonable definition of the irrigation season on 14 the Arkansas River is the season that we've used. 15 Q. Now, you've just testified that the 16 decree says that it is for direct irrigation use. 17 Is the word "direct" in the decree? 18 19 A. I know there's been conversation about the strike-out and so I can't recall if it's direct 13:46 20 flow or direct irrigation, but then the specific 21 reference to irrigation use, which, to me, for a 22 direct-flow water right, means direct irrigation 23 use, would be within the irrigation season, yes. 24 25 Q. Right, and we've already had the discussion about whether the term supplemental in Mile High Court Reporting and Video, Inc. 303-202-0210 contact@milehighreporting.com Concerning the Application of: Busk-Ivanhoe, Inc. July 26, 2013 - Volume IV 853 1 the decree includes or does not include application 2 of the water to wintertime replenishment of soil 3 moisture, but my primary reason for asking the 4 question is simply to determine from whom that 5 concept, that concern, originated, and I'm gleaning 6 the understanding that it was, again, from the 7 engineers. 8 A. Yes, that's correct. 9 Q. Then there is the legal position or the 13:47 10 position that water that is diverted through the 11 tunnel on days when there's a free river -- it 12 should not be counted? 13 A. That's correct. 14 Q. Did that position originate from the 15 16 engineers or from the attorneys? A. I think that, to give you a better 17 understanding of the background, the initial opinion 18 that we developed, that I developed, that Ms. Wynne 19 developed, was that the water should only be used 13:48 20 for beneficial purposes and when it was needed and, 21 from that position, we started to think about how do 22 we evaluate whether it was beneficially used and 23 needed on the east slope. 24 25 And so one of the ways we did that was through the evaluation of if the east-slope water Mile High Court Reporting and Video, Inc. 303-202-0210 contact@milehighreporting.com Concerning the Application of: Busk-Ivanhoe, Inc. July 26, 2013 - Volume IV 854 1 rights were all satisfied and there was a free 2 river, and we determined that that was one instance 3 where it wasn't beneficially used or needed. 4 Q. And so then you progressed from the 5 concept of when the water was beneficially used and 6 needed to the place where you are today where you 7 have used the terms "illegal," "unlawful," and 8 "undecreed" to describe some of the activities, uses 9 of water, diverted under the Busk-Ivanhoe system. 13:49 10 How did that transition occur, from 11 looking for water that was beneficially used to 12 looking for water that was -- for uses that were 13 illegal, unlawful, or undecreed? 14 A. I think there are two pieces of that 15 opinion, or essentially two separate opinions, and 16 one is that the water that was decreed should -- and 17 what's quantified for the transferable yield of the 18 property should, one, be based upon what was 19 beneficially used and, two, be based upon what was 13:50 20 lawfully used. So they don't really go together. 21 They 22 were two separate analyses and two deductions that 23 we made to the historical diversion record for the 24 Busk-Ivanhoe water rights. 25 Q. What causes you -- or let me rephrase Mile High Court Reporting and Video, Inc. 303-202-0210 contact@milehighreporting.com Concerning the Application of: Busk-Ivanhoe, Inc. July 26, 2013 - Volume IV 855 1 that. What's the distinction in your mind between 2 the three terms "illegal use," "unlawful use," and 3 "undecreed use"? 4 A. I think an example in this case -- one 5 of the unlawful uses of the Busk-Ivanhoe water was 6 the use by Aurora from 1987 through 2009, since the 7 water right was decreed for municipal use -- or for 8 irrigation use -- and was used for municipal 9 purposes, so that's an unlawful use. It's also an undecreed use and, in my 13:51 10 11 opinion, the difference between an undecreed use and 12 an unlawful use is whether the applicant or the 13 owner of the water right has gone through the 14 statutory process to grant an undecreed use until 15 they obtain a new decree, a change decree. 16 17 18 19 13:52 20 Q. You're talking about the substitute- water-supply-plan process? A. Yes, so undecreed use authorized through the statutory process via a substitute-water-supply plan would be lawful. Undecreed use for 23 years 21 without ever going through any statutory process to 22 do anything about it is unlawful. 23 Q. And then you also today used the term 24 "illegal." What's the distinction in your mind 25 between "unlawful" and "illegal"? I believe you Mile High Court Reporting and Video, Inc. 303-202-0210 contact@milehighreporting.com Concerning the Application of: Busk-Ivanhoe, Inc. July 26, 2013 - Volume IV 856 1 used it in connection with storage. 2 A. 3 interchangeably. 4 same as "illegal" use. 5 Q. I suppose I perhaps used them "Unlawful" would be, I think, the Now, are you aware of the Division 6 Engineer's authority to curtail uses that he 7 considers unlawful or undecreed or in any other way 8 improper, out of priority? 9 13:53 10 11 A. Yes. I mean, I heard the testimony that that's something that the division engineer can do. Q. And are you familiar, for example, with 12 the situation on the South Platte River where quite 13 a number of irrigation wells were red-tagged? 14 you familiar with that term? 15 16 17 A. Are I'm not sure I'm familiar with the term "red-tagged." Q. Let me take you through it. You 18 certainly had clients who were told by the water 19 commissioner that they were out of priority and they 13:53 20 21 22 needed to cease diversion on occasion? A. Sure, that they were out of priority and had to stop diverting. 23 Q. Yeah. 24 A. You bet. 25 Q. Have you ever had a client who ignored Mile High Court Reporting and Video, Inc. 303-202-0210 contact@milehighreporting.com Concerning the Application of: Busk-Ivanhoe, Inc. July 26, 2013 - Volume IV 857 1 that direction, without naming names? 2 A. Not that they've made me aware of. 3 Q. I'll represent to you that the next step 4 is that the water commissioner or the assistant 5 water commissioner will come out and put a red tag 6 on the pump or on the head gate and will lock it, if 7 physically possible, with a message on the red tag 8 that says, "May not be used." 9 A. Okay. 13:54 10 Q. "Until authorized." 11 of that happening? A. 12 13 Have you ever heard So the pumping from the well was curtailed? 14 Q. Curtailed. 15 A. Sure. 16 Q. You've heard of that happening? 17 A. Yes. 18 Q. And have you heard of the next step 19 13:54 20 21 22 happening, where the water user gets a pair of boltcutters and cuts the lock and opens up the head gate? A. Again, that's not something that I'm 23 aware of in any particular circumstances from my 24 clients. 25 Q. Okay. I'll represent to you that Mile High Court Reporting and Video, Inc. 303-202-0210 contact@milehighreporting.com Concerning the Application of: Busk-Ivanhoe, Inc. July 26, 2013 - Volume IV 858 1 there's a statute authorizing the Division or the 2 State Engineer to then seek an injunction and that 3 that injunction can, of course, be heard by the 4 Water Court but that, if the Water Court rules in 5 favor of the State, then the party who violated the 6 order is going to be liable for costs. 7 heard any of that? 8 9 13:55 10 11 A. Have you I think I have maybe some vague familiarity of hearing of that happening to a welluser or well-users, but I don't have a lot of familiarity, no. 12 MS. RYAN: Your Honor, I object. This 13 is not entirely accurate of the process that goes 14 on. 15 THE COURT: Okay, so I'm not sure what 16 the basis of the objection is. 17 hearsay or it assumes facts not in evidence, or 18 what's the basis for the objection under the rules? 19 13:55 20 MS. RYAN: THE COURT: 21 Mr. Krassa? 22 MR. KRASSA: 23 Are you saying it's I believe it's misleading. Okay. Your Honor, I'm leading up to the next question, if I may ask that question. 24 THE COURT: 25 MR. KRASSA: Go ahead. And then I'll give the Mile High Court Reporting and Video, Inc. 303-202-0210 contact@milehighreporting.com Concerning the Application of: Busk-Ivanhoe, Inc. July 26, 2013 - Volume IV 859 1 Court time to rule before he answers. Q. 2 (By Mr. Krassa) What I'm leading up to, 3 Mr. Sayler, is to ask whether you are aware of any 4 of those events happening in connection with the 5 Busk-Ivanhoe system. 6 THE COURT: 7 question, Mr. Sayler, if you know. A. 8 9 13:56 10 You can answer that I am not aware of the Division Engineer's actions with regard -- other than the testimony that Mr. Witte gave about the discussions 11 with the City of Aurora in, I think, the 2008 time 12 frame. 13 Q. (By Mr. Krassa) Right, and you heard 14 the dialogue between the Court and Mr. Witte asking 15 whether an alternative to reducing the transferable 16 yield might not be for the Division Engineer to shut 17 people down for using water for an undecreed 18 purpose? 19 13:56 20 MR. HALLFORD: Your Honor, I object. I think that mischaracterizes the question that the 21 Court asked. 22 Mr. Krassa would draw in an argument but I do not 23 believe that you asked that question, that there was 24 an alternative to changing the water. 25 It may be an interpretation that THE COURT: I believe that's correct, Mile High Court Reporting and Video, Inc. 303-202-0210 contact@milehighreporting.com Concerning the Application of: Busk-Ivanhoe, Inc. July 26, 2013 - Volume IV 860 1 Mr. Krassa. 2 authority was for using zeroes, why he was asserting 3 that zeroes should be used for the years of 4 undecreed diversion, as opposed to what you just 5 asked. MR. KRASSA: 6 7 I think I was asking about what his I stand corrected, Your Honor. 8 Q. (By Mr. Krassa) 9 A. I'm sorry. Q. Yes. 13:57 10 Do you recall that? Can you ask the question again? 11 12 MR. HALLFORD: 13 THE COURT: 14 question. 15 Q. Does he recall what? He's going to restate the (By Mr. Krassa) Do you recall the 16 dialogue between the Court and Mr. Witte about the 17 use of zeroes to represent years in which water was 18 placed in undecreed use in a change-of-water-rights 19 case? 13:57 20 A. Yes, I did. 21 Q. Okay. And what I gleaned from that was 22 that the conversation recognized the possibility 23 that, instead of using a string of zeroes, which 24 would have the effect, of course, of reducing the 25 amount of the transferable amount of water, the Mile High Court Reporting and Video, Inc. 303-202-0210 contact@milehighreporting.com Concerning the Application of: Busk-Ivanhoe, Inc. July 26, 2013 - Volume IV 861 1 alternative -- 2 And a part of that discussion was that 3 Mr. Witte said that that might be necessary to get 4 people to adjudicate changes. 5 That was part of his justification for that 6 position. MR. HALLFORD: 7 Do you recall that? Your Honor, I don't think 8 it's relevant what Counsel gleaned as an implication 9 or hope from your comments, so I'm not really sure 13:58 10 what the question posed to this witness is. THE COURT: 11 This is an expert witness 12 and it's cross-examination and I'm going to allow 13 him to answer the question if he understands it. 14 A. I think I understand the question and I 15 guess my opinion would be that the circumstance 16 you're describing is similar to Burlington's use of 17 the metro pumps and that there's specific language 18 in that ruling upheld by the Supreme Court at 19 paragraph 168, I believe, that states specifically 13:59 20 21 22 that the illegal use of the metro pumps should be counted as zeroes. And further, I think it's paragraph 170 23 that states that, just because the Division Engineer 24 knew about that pumping -- and in this case knew 25 about that pumping from 1968 until 2004, a period of Mile High Court Reporting and Video, Inc. 303-202-0210 contact@milehighreporting.com Concerning the Application of: Busk-Ivanhoe, Inc. July 26, 2013 - Volume IV 862 1 36 years -- that the Division Engineer's knowledge 2 and allowance of that pumping did not grant a water 3 right. And those credits were zeroed out, which 4 5 I think is very similar to the situation here and 6 the way that we've analyzed the Busk-Ivanhoe water. 7 Q. I think I just asked you whether you 8 remember the discussion about the zeroes and whether 9 there was an alternative way to get people to -- I 13:59 10 11 didn't ask you to opine and I would ask that your answer be stricken. THE COURT: 12 13 14 unresponsive. Q. We'll strike it as Go ahead, Mr. Krassa. (By Mr. Krassa) My question, the reason 15 that I've directed your attention to that 16 discussion, is simply to ask, not as a matter of 17 law, but in your capacity as an expert water 18 resources engineer, whether it isn't true that, to 19 the extent the goal of the system is to get people 14:00 20 to adjudicate changes of water rights instead of 21 doing undecreed uses, wouldn't it be satisfactory to 22 encourage the Division Engineer to use the authority 23 he has anyway, which is to curtail undecreed uses? 24 Wouldn't that accomplish that same objective? 25 A. I don't believe it accomplished it in Mile High Court Reporting and Video, Inc. 303-202-0210 contact@milehighreporting.com Concerning the Application of: Busk-Ivanhoe, Inc. July 26, 2013 - Volume IV 863 1 2 this case. Q. I won't argue with you other than to 3 mention that, as far as I know, the Division 4 Engineer has curtailed. 5 water for its municipal purposes today. THE COURT: 6 7 A. 9 Is that a question, Mr. Krassa? MR. KRASSA: 14:01 10 THE COURT: 11 12 Is that a question. Are you asking a question? THE COURT: 8 Aurora is still using the Q. I withdraw it, Your Honor. All right, thank you. (By Mr. Krassa) There was some 13 testimony by you, I believe, about the 773 acre feet 14 on the average that was stored. 15 A. Do you recall that? 773 acre feet was the average value that 16 we came up with for water that was what we indicated 17 was stored during the 1925-through-1986 period, yes, 18 or not used by the Rocky Ford High Line, I think I 19 referred to it as well. 14:02 20 21 22 23 24 25 Q. Right, and I think you calculated it in an annual time step. A. Based upon the superintendents' records that were available annually, yes. Q. Right. The decree for the Busk-Ivanhoe water right did not limit the use of that right to Mile High Court Reporting and Video, Inc. 303-202-0210 contact@milehighreporting.com Concerning the Application of: Busk-Ivanhoe, Inc. July 26, 2013 - Volume IV 864 1 land under the High Line Canal only, did it? A. 2 That's correct. That's the only use 3 we've been able to quantify in this case, but that's 4 correct. Q. 5 And, in fact, the decree authorized or 6 contemplated use on your 80,000 acres of land in the 7 Arkansas River Basin, correct? 8 A. That's correct. 9 Q. How do you know that the 773 average 14:02 10 acre feet of water weren't used as supplemental 11 supply of irrigation water somewhere in those 80,000 12 acres? 13 A. I think I testified that's part of the 14 problem. 15 acre feet. 16 there's no quantification that we or the Applicants 17 have been able to do with the use of that water. 18 19 14:03 20 21 Q. We don't know what happened to the 773 We refer to it as stored water, but Would you agree that the Arkansas River Basin is the most over-appropriated of the basins in this state, of the water divisions in this state? A. I'm not real familiar with or I don't do 22 a lot of work in the Rio Grande Basin, but out of 23 the basins that I work in I would agree that the 24 Arkansas is the most over-appropriated between the 25 Platte, the Arkansas, and, for example, the Mile High Court Reporting and Video, Inc. 303-202-0210 contact@milehighreporting.com Concerning the Application of: Busk-Ivanhoe, Inc. July 26, 2013 - Volume IV 865 1 Colorado. 2 Q. 3 And it has been for quite some time, hasn't it? 4 A. Yes, I believe it has. 5 Q. Doesn't that lead to the conclusion 6 that, in all likelihood, that 773 acre feet were 7 placed in beneficial use before being allowed to 8 escape to Kansas? A. 9 14:04 10 I believe that the standard is that we need to quantify for this change case that it was 11 put to beneficial use and that those beneficial uses 12 were what were allowed under the decree. Q. 13 Regardless of where it was used, it 14 wasn't available to the west-slope water rights, was 15 it? 16 17 18 19 14:04 20 21 22 23 24 25 A. Are you asking me should it have been available? Q. No. It wasn't physically available to the west-slope water rights, correct? This is water that -A. If it was taken through the tunnel, that's correct. Q. All right. We had some discussion about John Martin Reservoir? A. Yes, I recall that. Mile High Court Reporting and Video, Inc. 303-202-0210 contact@milehighreporting.com Concerning the Application of: Busk-Ivanhoe, Inc. July 26, 2013 - Volume IV 866 Q. 1 And I will represent to you that I went 2 online last night and tried to determine the 3 priority date and I couldn't find it on the State 4 Engineer's website, but I did find a newspaper 5 account of calls and it indicated that you were 6 right. 1948 was the priority date, but whether 7 8 it's 1937 or 1948, my question to you is this: 9 testimony was that -- and this came up in my 14:05 10 Your questioning about verification of the free-river 11 days, whether you had or whether Ms. Wynne had 12 confirmed that, on each free river day, John Martin 13 was spilling. And you indicated that that would be 14 15 irrelevant because John Martin is junior to all of 16 the High Line decrees. Do you recall that? 17 A. That's correct. 18 Q. And my question is: This doesn't 19 mean -- the fact that John Martin is junior does not 14:06 20 automatically mean that adequate water was available 21 on those days of free river just because it was free 22 river? 23 Line could still have wanted more water than was 24 physically in the river, thereby justifying a 25 release of Busk-Ivanhoe water; isn't that true? It could have been free river but the High Mile High Court Reporting and Video, Inc. 303-202-0210 contact@milehighreporting.com Concerning the Application of: Busk-Ivanhoe, Inc. July 26, 2013 - Volume IV 867 1 A. No, I don't believe that it is. If it 2 was a free river, the High Line Canal had the 3 ability to divert the full 501 cfs of those seven 4 water rights that it owns, all of which are senior 5 to that 1948 date you mentioned for John Martin. 6 Q. I didn't adequately state my question. 7 Let me try it again by way of an example. 8 there's a free-river day but there's only 300 cfs at 9 the High Line, for whatever reason, because of 14:07 10 11 nature. Let's say The High Line may be taking all the water but it's still a free river. Is that possible? 12 And on those days, 13 the High Line would want more water physically put 14 in the river? 15 A. From my experience of monitoring for 16 several years the daily administration of the 17 Arkansas River, I think the situation you just 18 described is not -- is virtually not possible. 19 is, that, if there were only 300 cfs flowing at the 14:07 20 That Rocky Ford High Line head gate -- 21 Q. Okay. 22 A. -- there would not be a free river on 23 the Arkansas River. There's thousands of cfs demand 24 by the other water rights on the Lower Arkansas 25 River and, if there's only 300 above the Rocky Ford Mile High Court Reporting and Video, Inc. 303-202-0210 contact@milehighreporting.com Concerning the Application of: Busk-Ivanhoe, Inc. July 26, 2013 - Volume IV 868 1 High Line, somebody's going to be calling for that 2 water. 3 Q. When you did your review of excess water 4 available to the High Line, did you consider that 5 all 501 cfs of water on the High Line water rights 6 list were available within priority? 7 A. We based that excess analysis that 8 you're referring to upon the actual amounts diverted 9 at the Rocky Ford High Line head gate, so at times 14:08 10 those records actually indicate more than 501 cfs 11 being diverted, but it would be based upon whatever 12 amount was diverted by the Rocky Ford High Line at 13 its head gate. 14 Q. Physically diverted? 15 A. Physically diverted, that's correct. 16 Q. Shortly before the lunch break today you 17 testified about the potential injury to the western 18 slope and you used language such as the increased 19 demand that could result if the Court grants this 14:09 20 application in full, language such as that such a 21 decree would cause additional releases from Green 22 Mountain Reservoir or that there would be increased 23 draw-down. Do you recall those discussions? 24 A. Yes, I do. 25 Q. That choice of words seemed a little Mile High Court Reporting and Video, Inc. 303-202-0210 contact@milehighreporting.com Concerning the Application of: Busk-Ivanhoe, Inc. July 26, 2013 - Volume IV 869 1 strange given the fact that, as we've discussed, the 2 Busk-Ivanhoe physical diversions, including all that 3 water that you're concerned about, has been taken 4 away from the western slope since 1928, so I was 5 surprised to hear you talk as though the result of 6 the decree that the Court might enter would be an 7 increased diversion from the western slope. But that would not be the case, would 8 9 14:10 10 it? If the Court were to enter the decree as requested by Busk-Ivanhoe, Inc., then diversions 11 through the tunnel would continue at about the same 12 rate as they have historically; isn't that right? A. 13 The diversions through the tunnel, based 14 upon the Applicant's proposed terms and conditions 15 and analysis, would allow future uses taking credit 16 for the illegal uses or the unlawful uses that have 17 occurred in the past. Q. 18 19 14:11 20 That's not my question. nothing to do with credit. My question has My question has to do with the amount of water that's taken out of the 21 western slope would continue at about the same rate 22 as it has in the past, correct? 23 A. That's correct. 24 Q. Okay. 25 this: And so my follow-up question is There was some discussion, I believe, with Mile High Court Reporting and Video, Inc. 303-202-0210 contact@milehighreporting.com Concerning the Application of: Busk-Ivanhoe, Inc. July 26, 2013 - Volume IV 870 1 Mr. Bethel -- and you touched on it a little bit 2 before lunch -- concerning the approximately 3 thousand acre feet, 40 percent, of water that would 4 become available to the west slope if the west-slope 5 position were adopted in this case. 6 discussion? A. 7 Remember that I remember the 40 percent number from 8 Mr. Bethel's testimony. 9 attributed to a particular volume or anything. Q. 14:12 10 I don't recall it being There was a bit of testimony -- it may 11 have been with Mr. Bethel, possibly with 12 Ms. Wynne -- where we simply took 40 percent of 13 2500. 14 A. I don't recall that. 15 Q. Okay. 16 A. But okay. 17 Q. We came up with a thousand acre feet. 18 My question to you is, in your analysis of the 19 effect of this case on the western slope, did you do 14:12 20 a calculation of the amount of water, of additional 21 water that would become physically available on the 22 west slope, if the west slope position prevails? 23 A. No, I did not. 24 Q. Have you done any thinking about which 25 water rights on the western slope would benefit from Mile High Court Reporting and Video, Inc. 303-202-0210 contact@milehighreporting.com Concerning the Application of: Busk-Ivanhoe, Inc. July 26, 2013 - Volume IV 871 1 the additional water that would become available if 2 the Court agrees with the west-slope position? A. 3 I don't think any water rights would 4 benefit. 5 protected by not allowing the Busk-Ivanhoe to be 6 enlarged based upon unlawful, non-beneficial 7 historic uses. Q. 8 9 14:13 10 I think that water rights would be But I think you've already agreed that there would be some physical water available to the western slope that hadn't been there for the last 11 85 years, so my question is: 12 the west slope would get the benefit of that, in 13 your opinion? A. 14 Which water rights on The water rights that would have been 15 injured in the past by that unlawful use would 16 include those rights that I described, the water 17 rights that were subject to call from the Cameo 18 Call. 19 Q. So they'd get the benefit of that? 14:14 20 A. I do not agree with the use of the word 21 22 "benefit," no. Q. Okay. And the water rights that you 23 consider have been injured are primarily the water 24 rights that are junior to the Busk-Ivanhoe, correct, 25 the 1941 Cameo Call? Mile High Court Reporting and Video, Inc. 303-202-0210 contact@milehighreporting.com Concerning the Application of: Busk-Ivanhoe, Inc. July 26, 2013 - Volume IV 872 1 A. I agree with your statement, water 2 rights that are junior to the Busk-Ivanhoe, but the 3 impact can be to any water right called out by the 4 Cameo water rights upstream of Cameo or to a number 5 of other water rights, essentially any water right 6 that's a beneficiary of the Historic Users Pool as a 7 result of the increased use of the Historic User 8 Pool that would come out of the expansion that has 9 occurred of the Busk-Ivanhoe water right, so the 14:15 10 11 injury would be to a large array of west-slope water rights. 12 MR. KRASSA: 13 THE COURT: 14 (Pause in the proceedings.) 15 MR. KRASSA: 16 Thank you, Your Honor. 17 THE COURT: 18 Mr. Hamre? Yes. No further questions. Thank you. CROSS EXAMINATION 19 14:15 20 One moment, Your Honor. BY MR. HAMRE: 21 Q. Good afternoon, Mr. Sayler. 22 A. Good afternoon. 23 Q. I've been trying to organize my blizzard 24 of sticky notes. 25 subjects grouped together. I'm hoping we'll have most of the I can't promise that Mile High Court Reporting and Video, Inc. 303-202-0210 contact@milehighreporting.com Concerning the Application of: Busk-Ivanhoe, Inc. July 26, 2013 - Volume IV 873 1 will always be the case. You had indicated regarding your 2 3 discussion with Mr. Hallford about the need for 4 Busk-Ivanhoe water to be stored on the east slope. 5 You indicated that those water rights could be 6 operated on a direct-flow basis and cited this year 7 as one example; is that correct? 8 A. That's correct. 9 Q. Would you expect that people would spend 14:16 10 substantial amounts of money to build a 11 high-elevation diversion system that's hard to 12 maintain and keep an operation only to get a benefit 13 from it in dry years like this one? 14 A. I can't speculate what they were -- 15 other than the fact that, for example, the Carltons 16 were looking at an east-slope reservoir that they 17 filed a claim on for Lake Fork Reservoir and they 18 never built it, so I'm not sure that I can know 19 exactly what they had in mind in terms of dictating 14:17 20 21 22 how much money they would spend. Q. My question is simply whether that would be logical or rational. 23 A. I guess I don't think I can answer that. 24 Q. In your discussion with Mr. Hallford 25 about supplemental supply, you indicated that you Mile High Court Reporting and Video, Inc. 303-202-0210 contact@milehighreporting.com Concerning the Application of: Busk-Ivanhoe, Inc. July 26, 2013 - Volume IV 874 1 did not believe that storage was allowed -- 2 east-slope storage was allowed because there were no 3 references to east-slope storage in various 4 documents such as the map and statement filings, the 5 petition, and the decree. 6 preparing water-court applications for your clients? 7 8 9 14:18 10 A. Do you participate in Yes, that's one of the things that I assist clients with at times. Q. And you understand that there are certain legal requirements for what has to be -- 11 what information has to be provided in those 12 applications, correct? 13 14 15 A. I believe there's certain information that needs to go into the application, yes. Q. And is it your understanding that there 16 were legal requirements for what had to be included 17 in a statement of claim back at that time, back in 18 the 1920s? 19 14:18 20 21 A. I guess I don't have an understanding of what those legal requirements were. Q. Is it your understanding that the 22 information supplied depends on what you're asking 23 the Court to do? 24 A. 25 question. I'm not sure that I understand that Mile High Court Reporting and Video, Inc. 303-202-0210 contact@milehighreporting.com Concerning the Application of: Busk-Ivanhoe, Inc. July 26, 2013 - Volume IV 875 1 Q. Doesn't the information you put in an 2 application depend on what kind of right you're 3 asking the Court to recognize? 4 A. I think the application speaks hopefully 5 clearly of what the water right is to be used for, 6 yes, and I should add how it's going to be used, 7 what it's going to be used for, how it's going to be 8 used, those kinds of things. 9 14:19 10 Q. You don't know whether or not the Garfield County District Court was legally able to 11 enter a decree that granted storage in east-slope 12 reservoirs, do you? 13 A. I do not. 14 Q. And you don't know whether any court in 15 the Arkansas Basin was legally able to enter a 16 decree for storage in east-slope reservoirs of water 17 that had been diverted from the Colorado River 18 Basin, do you? 19 A. I do not. 14:19 20 Q. In reference to Decree Paragraph 8, you 21 pointed to language that said -- that made a 22 reference to "lands inadequately supplied with 23 water." 24 storage? 25 inadequate. Instead -- that doesn't mean you need It just means that the native supply is Do you recall that testimony? Mile High Court Reporting and Video, Inc. 303-202-0210 contact@milehighreporting.com Concerning the Application of: Busk-Ivanhoe, Inc. July 26, 2013 - Volume IV 876 1 2 3 A. I think that's more or less what I said, Q. If you generate a graph of the river yes. 4 flow over the course of a year, that's called a 5 hydrograph, right? 6 A. That's correct. 7 Q. And that winds up being a line or a 8 curve with a hump in it, correct, that's got a peak 9 and then tails off? 14:20 10 11 12 A. Yes, usually a peak during the run-off season. Q. And a hydrograph of the Arkansas River 13 would be a curved line with a hump in it that peaks 14 generally in early June, correct? 15 A. Not in years like this year; 16 essentially, you know, in very dry years, there 17 would be virtually no peak. 18 Q. There would be a smaller peak? 19 A. It would be a smaller peak. 14:21 20 Q. But, on average, or generally speaking, 21 there's going to be a hump and it's going to be in 22 late May or early June, correct? 23 A. Typically the point of highest flow will 24 be at that time. 25 Q. That's right. And a graph of a crop-irrigation-water Mile High Court Reporting and Video, Inc. 303-202-0210 contact@milehighreporting.com Concerning the Application of: Busk-Ivanhoe, Inc. July 26, 2013 - Volume IV 877 1 requirement would always be a curved line with a 2 hump, correct? 3 water all season long? A. 4 5 Plants don't need the same amount of We frequently think of it as like a bell-shaped curve, yes. Q. 6 Sugar beets were a big cash crop in the 7 1920s in the Arkansas Valley, weren't they, or do 8 you know? 9 A. 14:22 10 11 I know that, throughout eastern Colorado, there were more sugar beets grown in decades past than currently, yes. Q. 12 And, in fact, the Carltons, the 13 appropriators of the Busk-Ivanhoe system, had an 14 interest in a sugar beet processing plant in the 15 town of Holly, didn't they? 16 17 18 19 14:22 20 21 A. I don't recall if that was the case or Q. Do you know whether, for a crop like not. sugar beets, the peak of that hump in irrigation water requirement would be in early August? A. I would say the peak demands would be 22 late June through -- I'd say mid June through mid 23 August, something like that. 24 25 Q. That's a pretty broad peak. When would the top of the peak occur? Mile High Court Reporting and Video, Inc. 303-202-0210 contact@milehighreporting.com Concerning the Application of: Busk-Ivanhoe, Inc. July 26, 2013 - Volume IV 878 1 2 A. I think it depends on the climate for a given year. 3 Q. I'm talking about the Arkansas. 4 A. Again, it depends on the given year. 5 You could have a year with a really hot or dry June 6 or a wet and cool August, so I'm just saying that 7 irrigation requirements, I think, typically for 8 crops will peak in the late June, July, early August 9 time period. MR. HAMRE: 14:23 10 Can we look at Exhibit WSO 11 9-S, Sierra, if we could scroll down to the bottom 12 of that, please. 13 Q. This shows that the irrigation-water 14 requirement in July and August combined is greater 15 than 20,000 acre feet, doesn't it? 16 A. Yes. The totals for July and August are 17 greater than 20,000 but the total for June is 18 greater than August. 19 14:24 20 Q. The total for May and June is approximately 14,000, isn't it? 21 A. 14,000 looks about right. 22 Q. And these irrigation-water requirements 23 in this exhibit were for the crops they were growing 24 in 2003 and not in the 1920s, correct? 25 A. The survey that I reported that we used Mile High Court Reporting and Video, Inc. 303-202-0210 contact@milehighreporting.com Concerning the Application of: Busk-Ivanhoe, Inc. July 26, 2013 - Volume IV 879 1 is based upon a survey that Mr. Bethel used in his 2 2003 report for the substitute-water-supply plan. 3 don't recall exactly when the survey was, but it was 4 sometime shortly before then, I believe. 5 6 7 Q. And he interviewed farmers about what they were growing at that time? A. I don't believe Mr. Bethel did the 8 interviews. 9 recollection is -- was conducted by the Rocky Ford 14:24 10 11 12 I I think there was a survey that -- my High Line Company of its shareholders. Q. The survey asked about what Farmers were growing at that time, though, correct? 13 A. Yes, I believe that's right. 14 Q. So if your irrigation demand is higher 15 in July and August than it is in May and June but 16 you've got water that is most available in May and 17 June, then you're going to need storage to meet that 18 irrigation demand, aren't you? 19 14:25 20 A. Mr. Hamre, I think you've mischaracterized it. I stated the highest 21 irrigation demand is in July. The second highest 22 from the table that you referenced is in June, 23 followed by August, so I don't believe it's accurate 24 to say that the highest irrigation demand is in 25 May -- or I'm sorry -- July and August. Mile High Court Reporting and Video, Inc. 303-202-0210 contact@milehighreporting.com Concerning the Application of: Busk-Ivanhoe, Inc. July 26, 2013 - Volume IV 880 I think there's an equally high 1 2 irrigation demand, as shown here in the June column, 3 of 9,722 acre feet, slightly more than was needed in 4 August. 5 6 7 8 9 14:26 10 11 12 13 14 15 Q. And you're going to have native water rights most likely in June; is that right? A. In many years, yes. In drier years, not very many of the native rights. Q. If you're appropriating a water system and planning for the future, you going to rely on those averages, aren't you? A. I'm not sure what averages you're referring to. Q. We're talking about average numbers in the bottom column of your table, are we not? 16 A. Okay, yes. 17 Q. And you keep saying, well, yeah, but in 18 a dry year it will be different. 19 you're looking for a water supply to help you finish 14:26 20 21 22 I'm saying, if your crops, you're going to be looking at what you need on an average basis, right? A. I'm not sure that I agree with the 23 statement exactly. I think you may be looking at 24 what you need under a dry-year-type situation, 25 especially for a supplemental supply. That's why it Mile High Court Reporting and Video, Inc. 303-202-0210 contact@milehighreporting.com Concerning the Application of: Busk-Ivanhoe, Inc. July 26, 2013 - Volume IV 881 1 would be supplemental, or one reason why it would be 2 supplemental. 3 Q. 4 question. 5 spend large sums of money to appropriate a 6 transmountain water system that they can only use in 7 dry years? 8 9 14:27 10 A. And that gets back to my initial Do you think that people are going to I think I mentioned I don't know what their reasoning was for the money that they spent. Q. Let's move on. Regarding your 11 experience interpreting decrees, do you employ a 12 rule that, if someone took the time and trouble to 13 cross out a word and write in a different word, that 14 there was probably a reason and you need to give 15 effect to that change? 16 17 18 19 14:28 20 21 A. I guess I usually wonder who crossed out the word and why, yes. Q. Assuming it's an official document and someone crossing out the word had the authority to do that, would you still focus on that new word must have some meaning? 22 A. Yes, I suppose I would, yes. 23 Q. You would have to assume that they must 24 have intended some difference between the word they 25 put in and the word they scratched out, correct? Mile High Court Reporting and Video, Inc. 303-202-0210 contact@milehighreporting.com Concerning the Application of: Busk-Ivanhoe, Inc. July 26, 2013 - Volume IV 882 1 2 3 Otherwise, why would they make the change? A. Are you referring to the 2621 decree in this instance? 4 Q. I'm speaking in general first. 5 A. Well, I think it depends on what word is 6 crossed out and what word is inserted. 7 example of the 2621 decree, I don't distinguish a 8 lot of difference between the words "direct 9 irrigation" and "direct flow." 14:28 10 11 12 In the I think it's still a water right taken for direct purposes as opposed to a storage water right. Q. In your experience in interpreting 13 decrees, you wouldn't interpret that to mean -- the 14 fact that they had made that distinction wouldn't 15 suggest to you that direct application would mean 16 direct application to a crop but direct flow, in 17 this situation, the situation of the Busk-Ivanhoe 18 system, might mean direct flow out of the basin? 19 14:29 20 A. Not at all; in my experience, when we think of an irrigation ditch and its water rights 21 and if it has direct-flow water rights and storage- 22 water rights -- 23 24 25 Q. I'm talking about transmountain, not just any ditch. A. Well, I'm just giving you my experience, Mile High Court Reporting and Video, Inc. 303-202-0210 contact@milehighreporting.com Concerning the Application of: Busk-Ivanhoe, Inc. July 26, 2013 - Volume IV 883 1 and my experience is that direct flow means direct 2 use for what it's decreed for. 3 direct-flow water right for irrigation. 4 have a direct-flow water right for municipal uses. You can have a You can It means you will use it directly. 5 I 6 don't think direct flow means you can store it any 7 more than direct irrigation means you can store it. 8 You use it directly. 9 14:30 10 11 12 13 14 15 Q. And the experience you're referring to is with native water rights, isn't it? A. I don't think it's excluded to native water rights. Q. What experience have you had in dealing with changes of transmountain water rights? A. I don't recall specific examples of 16 transmountain-water-rights changes like this, but 17 speaking from my experience with changes of water 18 rights in general, I don't think direct has a 19 different meaning with transmountain than it has 14:30 20 with in-basin water rights. Direct is a separate 21 identifier, a separate adjective, that means put the 22 water to direct use. 23 Q. And my question was whether your 24 experience was with native water rights, and I 25 believe your answer was yes? Mile High Court Reporting and Video, Inc. 303-202-0210 contact@milehighreporting.com Concerning the Application of: Busk-Ivanhoe, Inc. July 26, 2013 - Volume IV 884 1 A. I guess that's correct, yes. 2 Q. Thank you. Yesterday you gave the 3 opinion that a transmountain water right is not 4 different from other water rights regarding storage 5 on the east slope. 6 engineering opinion? 7 component to that? A. 8 9 14:31 10 In what way is that an Is there an engineering I think I might have given that opinion or that reference just with respect to that it's based upon what the decree says and that, in my 11 experience, there's no distinguishing between the 12 transmountain water right and an in-basin water 13 right. It's either, you know -- that's one way 14 15 of distinguishing a water right. 16 it direct flow or is it storage, and what does the 17 decree say about that? 18 ways of identifying the water right. 19 14:31 20 Q. Another way is is So there are two different But a transmountain water right is different from other water rights? We're talking 21 about the legal characteristics of the water rights. 22 I mean, that is a legal opinion, isn't it? 23 A. I think it's an interpretation of the 24 wordage in a decree, which is something that 25 engineers do all the time. Mile High Court Reporting and Video, Inc. 303-202-0210 contact@milehighreporting.com Concerning the Application of: Busk-Ivanhoe, Inc. July 26, 2013 - Volume IV 885 1 Q. I'll let the Court decide for itself 2 whether it's a legal opinion. Yesterday, when we 3 were talking about your free-river analysis, there 4 was some discussion about the averages that you 5 were -- you had this call analysis, a synthesized 6 call analysis, done by Mr. Tyner. And then there was some extrapolation 7 8 further back in time from that and the extrapolation 9 back to the '40s and the '30s. 14:33 10 11 12 13 That was applied on an average basis, correct? A. On a monthly average basis over that 24-year period, 25-year period, yes. Q. And you testified that applying your 14 call analysis on an average basis worked out the 15 same as applying it all in one year? 16 A. I think I testified that it had the same 17 effect, since we know there were periods of no call 18 or a free river, that it had the same effect as 19 actually applying it, say, 100 percent in one year 14:33 20 21 22 versus 10 percent a year for 10 years. It's over the average period. Q. Have you ever heard the expression "It's 23 possible to drown in a stream channel that's dry on 24 average"? 25 A. I don't think I've heard that Mile High Court Reporting and Video, Inc. 303-202-0210 contact@milehighreporting.com Concerning the Application of: Busk-Ivanhoe, Inc. July 26, 2013 - Volume IV 886 1 2 expression. Q. Isn't it the same thing here? Isn't it 3 really -- it's a combination of timing and the 4 amount of water at that time that makes the 5 difference, isn't it? 6 7 8 9 14:34 10 A. Can you repeat the question? I'm not sure I understood it. Q. It's the combination of timing and the amount available at a specific time. When you're talking about whether you're going to drown in a 11 flash flood in a dry channel or whether you're 12 looking at the call on the river on some days, some 13 years, and not others, you have to look at a 14 particular condition at a particular time, but the 15 average may blur the effect, doesn't it? 16 A. I think, in this case, if we had had 17 specific data for each particular year, the effect 18 would have been that the years with those one-in-10 19 years when the whole -- for example, I was talking 14:34 20 about the month of June -- was free, those would 21 have been the years of high diversion by 22 Busk-Ivanhoe. 23 So we would have had an even probably 24 larger reduction because we would have shown even 25 more water on average diverted during the period. Mile High Court Reporting and Video, Inc. 303-202-0210 contact@milehighreporting.com Concerning the Application of: Busk-Ivanhoe, Inc. July 26, 2013 - Volume IV 887 Q. 1 2 That's your supposition? A. 3 4 But you don't have that data, do you? basis. That's correct. Q. 5 We don't have the data on a year-by-year In regard to Mr. Tyner's synthesized 6 call analysis, his analysis stopped in 1954, not in 7 1950; isn't that correct? A. 8 9 I need to check our note on the exhibit to be sure of that. Q. 14:35 10 I don't recall. There was quite a bit of testimony 11 yesterday about why Mr. Tyner's analysis should be 12 given credibility because of all the work that he 13 had put into it and et cetera, but going back to 14 1950 includes work that's not Mr. Tyner's, doesn't 15 it? 16 A. I don't think Mr. Tyner was at the 17 Division Engineer's office in the 1950s, if that's 18 what you're asking. 19 Q. No, I'm talking about the data. 14:36 20 represented that this Tyner synthesized call 21 analysis went back to 1950; is that correct? 22 that not correct? 23 A. It was Or is I think you may be correct that it might 24 have been 1954, but I'd need to check whether it was 25 '54 or '50. Mile High Court Reporting and Video, Inc. 303-202-0210 contact@milehighreporting.com Concerning the Application of: Busk-Ivanhoe, Inc. July 26, 2013 - Volume IV 888 1 2 3 Q. Why didn't Mr. Tyner extend his analysis back prior to 1954 or any time prior to 1950? A. I don't know. Actually, if I can add to 4 that, most of the analysis that is completed on the 5 Arkansas Basin today is completed essentially post 6 compact starting in the early 1950s. 7 the reason that he went back to that period of time. 8 9 14:37 10 Q. That may be Or it may be he didn't think he had sufficient data to do that? A. Well, there's been discussion about the 11 fact that John Martin Reservoir was completed in '48 12 and so the river was quite a bit different before 13 that time, but as I've testified to, I think that 14 there would have been, all other factors being 15 equal, even more free-river days before that time 16 than afterwards for the reasons that I testified to 17 yesterday. 18 19 14:38 20 21 22 Q. Well, I was about to get to that. So it's your assertion that free river was going to be more prevalent during the dust bowl of the 1930s than during the drought of the 1950s? A. Maybe not during the specific drought 23 period of the '30s, but there were also wet periods 24 during that time. 25 Q. But your call analysis shows far more Mile High Court Reporting and Video, Inc. 303-202-0210 contact@milehighreporting.com Concerning the Application of: Busk-Ivanhoe, Inc. July 26, 2013 - Volume IV 889 1 periods of excess due to there not being a call 2 throughout the '30s than during the '50s, doesn't 3 it? 4 A. I'm not sure that I -- I don't think it 5 does show that, but I'm not sure I understood your 6 question. 7 Q. 8 I don't have the exhibit number that shows the exhibit that shows the amount of -- 9 THE COURT: 9-K perhaps? 14:39 10 MR. HAMRE: It could be. Was that 9-K? 11 A. I'm sorry. 12 Q. (By Mr. Hamre) That's correct. 13 THE COURT: Maybe not. 14 MR. HAMRE: That is the exhibit I was 15 16 17 18 19 14:39 20 looking for. A. Okay, I'm not sure that I understood your question. Q. (By Mr. Hamre) If you particularly look at the column for June, you show a lot of water that you deemed as excess during the month of June 21 throughout the '30s and very little -- for most of 22 the years in the '50s during that drought, 23 particularly in the early '50s, there is no 24 reduction? 25 A. Sure, that's a very good point and it's Mile High Court Reporting and Video, Inc. 303-202-0210 contact@milehighreporting.com Concerning the Application of: Busk-Ivanhoe, Inc. July 26, 2013 - Volume IV 890 1 a good point about how this reference to the 1930s 2 being such a dry period wasn't necessarily the case. 3 Keep in mind that these reductions from the 1925- 4 through-1950 period, I believe, that were used on 5 the average are, for the month of June, as I 6 testified to yesterday, this is 9 percent of the 7 Busk-Ivanhoe diversions here each and every June. So by looking at these high numbers at 8 9 14:40 10 times in the 1930s -- and there's some low ones too -- but by looking at these high numbers at times 11 in the 1930s, you can see that the Busk-Ivanhoe 12 actually diverted lots of water during some of those 13 periods of time. So I don't think they were necessarily 14 15 across-the-board drought periods and I think that 16 the 1925-through-1950 period on average would not be 17 significantly different than the post-1950 period. 18 19 14:41 20 Q. We may come back to that. You also indicated that the Colorado -- you believe that the Colorado V Kansas litigation and the U.S. Supreme 21 Court's decision in that case indicated that there 22 was less water in the river after 1950 than before. 23 Is that a fair approximation of what you said? 24 25 A. No, I don't believe so. I think what I said is that the finding from that litigation was Mile High Court Reporting and Video, Inc. 303-202-0210 contact@milehighreporting.com Concerning the Application of: Busk-Ivanhoe, Inc. July 26, 2013 - Volume IV 891 1 that there were depletions that occurred post 2 compact, after 1950, or after 1948, that were the 3 result of the proliferation of wells constructed 4 after the war and after rural power came to be on 5 the Arkansas River and that -So, therefore, what happened is we had a 6 7 situation on the river after 1950 where there were 8 tens of thousands of acre feet of well depletions 9 that did not exist before 1950 and, therefore, all 14:42 10 other factors being equal again, that's another 11 component that would lead us to resolve that there 12 would have been more free-river days prior to 1950 13 than there would have been after 1950 because of the 14 wells pumping illegally and depleting the stream and 15 increasing the call by the Rocky Ford High Line and 16 the other major ditches on the Arkansas River. 17 Q. Those would have resulted in depletions 18 downstream from the Rocky Ford head gate primarily, 19 wouldn't they? 14:42 20 A. It doesn't really matter. The Amity 21 Canal has a 283-cfs water right that's essentially 22 right ahead of the Rocky Ford's big 378-cfs water 23 right and there would have been a lot of wells above 24 the Amity, which diverts down below John Martin and 25 between the Amity and the Rocky Ford High Line. Mile High Court Reporting and Video, Inc. 303-202-0210 contact@milehighreporting.com Concerning the Application of: Busk-Ivanhoe, Inc. July 26, 2013 - Volume IV 892 But they would have been all along the 1 2 river. 3 the litigation between the two states, I think the 4 preponderance, greatest amount, might have been, the 5 further down you go, that there were certainly wells 6 all along the Lower Arkansas River. 7 I think, if you look at the findings from Q. And those wells were meeting some of the 8 crop irrigation demand and thereby reducing some of 9 the need for service diversions, weren't they? 14:43 10 A. To some degree, but the increased 11 depletions that occurred were separate. 12 increased depletion above and beyond what was 13 occurring through the ditches and that's what the 14 finding of the litigation between the states was. 15 16 17 Q. That was an You have not done a numerical analysis on that, though, have you? A. I have looked at that data very 18 specifically. 19 right now, but I can say it was tens of thousands of 14:43 20 21 I don't recall exactly the numbers acre feet of out-of-priority depletions. Q. You haven't done any numerical analysis 22 of how the well depletions did or did not affect 23 demands for surface diversions? 24 25 A. No, just with how it would have affected the call before 1950 versus after 1950. Mile High Court Reporting and Video, Inc. 303-202-0210 contact@milehighreporting.com Concerning the Application of: Busk-Ivanhoe, Inc. July 26, 2013 - Volume IV 893 1 Q. In discussing part of your analysis, I 2 believe you indicated that you normally treat 3 reservoir evaporation as an accepted component of 4 beneficial use; is that correct? 5 A. I don't recall stating that, but I don't 6 disagree with the statement, for a water right 7 that's decreed for storage. 8 9 14:44 10 Q. That wasn't your exact words, but I believe you made a statement to that general effect yesterday. 11 A. I don't recall. 12 Q. Can we look at Table 9. Mr. Sayler, 13 looking at Exhibit 9-L, can you tell me how many 14 years are there in which there are zeroes in the 15 last column? 16 A. I guess, before I answer, I'd just like 17 to mention that this is not an exhibit that I 18 testified to. 19 report, which is the exhibit that I testified to. 14:46 20 Q. We revised Table 9 in our June 4th And which exhibit number is that? 21 THE COURT: 22 THE WITNESS: 23 24 25 10-A? Yes, I believe that's Exhibit 10-A. Q. (By Mr. Hamre) Let's try Exhibit 10-A. So how many years are there in which there are Mile High Court Reporting and Video, Inc. 303-202-0210 contact@milehighreporting.com Concerning the Application of: Busk-Ivanhoe, Inc. July 26, 2013 - Volume IV 894 1 zeroes in the last column? 2 A. In Column 4? 3 Q. Correct. 4 A. I'll need to count that. 5 Q. And approximately what percentage of the 6 7 I believe 15. total is that? A. There are 60 years in this table, from 8 1925 to '86. 9 gray we did not have adequate information for, so 14:48 10 11 Now, four of those shown in the shaded say there's 56 years of data within here, so it would be 15 out of 56 years, slightly over -- 12 Q. A quarter of the time? 13 A. Slightly over a quarter, yeah. 14 Q. What happened in those years to create 15 16 those zeroes? A. Those were years when we show a zero 17 here when there was more -- again, Column 4 is equal 18 to Column 3 minus Column 2, if positive. 19 Column 2 is greater than Column 3, then there's a 14:49 20 If zero value in Column 4. 21 Q. How could there be a negative value? 22 A. Well, we don't show any negative values. 23 24 25 In fact -Q. But if you do the math, you would get a negative value, right, and you decided to show the Mile High Court Reporting and Video, Inc. 303-202-0210 contact@milehighreporting.com Concerning the Application of: Busk-Ivanhoe, Inc. July 26, 2013 - Volume IV 895 1 2 negative values as just zeroes? A. Well, what this is showing -- maybe it's 3 better that I actually walk through Columns 2 and 3 4 to recall what those are, and if you could go back 5 up to the top again -- 6 7 Q. Let's look at 1981 just because that's first where I noticed it. 8 A. Okay. 9 Q. You've got a zero, but the difference 14:50 10 11 between those numbers is not zero, is it? A. No, and we state in our notes down 12 below, essentially, since this Column 4 is equal to 13 Column 3 minus Column 2 -- so Column 3 is the 14 Busk-Ivanhoe, Inc.'s diversions at the tunnel. 15 Column 2 is the amount of water attributable to 16 Busk-Ivanhoe, Inc., again, diverted at the Rocky 17 Ford High Line, plus the 12-and-a-half-percent 18 transit loss. 19 So 2 is essentially how much water had 14:50 20 to be or that was diverted at the tunnel to get it 21 down to the amount that the Rocky Ford High Line 22 actually used that year, so in 1981 that was 3,000 23 acre feet, so what was actually the pro-rata portion 24 of Busk-Ivanhoe diversions that was actually 25 diverted through the tunnel is shown here in Mile High Court Reporting and Video, Inc. 303-202-0210 contact@milehighreporting.com Concerning the Application of: Busk-Ivanhoe, Inc. July 26, 2013 - Volume IV 896 1 Column 3. That's 2362 acre feet, so what this 2 3 means in that year is that either Rocky Ford High 4 Line took more than, since we're using that -- well, 5 took more than the pro-rata share available to the 6 Busk-Ivanhoe, Inc., or water was taken in the canal 7 above and beyond what was diverted through the 8 tunnel, which could have been water that was stored 9 and carried over from the previous year. And that's specifically why we've gone 14:51 10 11 through this calculation and essentially done the 12 flip side. 13 Column 4 was when there was more water taken through 14 the tunnel than was used by the Rocky Ford High Line 15 and had to be stored. Every year that there's a value in Or at least we can't quantify the use, 16 17 but if it was stored, it was storage that was 18 carried over to the following year, so when there's 19 a zero here, it just means that that's a year where 14:52 20 they took more at the canal than came through the 21 tunnel, which is an indication of, in my opinion, 22 the unlawful storage that was going on. 23 Q. But you testified yesterday that you had 24 done this extensive study and you just couldn't 25 figure out where that water left in Sugar Loaf at Mile High Court Reporting and Video, Inc. 303-202-0210 contact@milehighreporting.com Concerning the Application of: Busk-Ivanhoe, Inc. July 26, 2013 - Volume IV 897 1 the end of the year went. 2 assumption be that it was carried over to the next 3 year and then delivered to the Rocky Ford High Line 4 the next year, or at least a part of it was? 5 A. Wouldn't the logical No, I don't think so. As I testified 6 to, this is slightly larger than Mr. Bethel's -- if 7 you take the 20 percent fee that Mr. Bethel's 8 Table 1 of his June report shows that was paid by 9 Rocky Ford High Line each year to CF & I, that 14:53 10 amounts to a little over 700 acre feet. 11 I think the reason maybe that we're a 12 little bit higher could be because of this carry- 13 over, but the majority of this 773 acre feet, just 14 as shown in Mr. Bethel's analysis, would be the 15 20 percent fee which hasn't been quantified and 16 which we don't really know what happened to. 17 Q. That was my question. You can't figure 18 out where -- wait. 19 figure out where it went, the water left in storage 14:53 20 21 22 Which water is it that you can't at the end of the year or the water that was paid to CF & I? A. I'm not sure I understand the question, 23 but the 20 percent fee paid to CF & I would have 24 been almost all of this 773 acre feet but not quite 25 all of it. Mile High Court Reporting and Video, Inc. 303-202-0210 contact@milehighreporting.com Concerning the Application of: Busk-Ivanhoe, Inc. July 26, 2013 - Volume IV 898 1 Q. So it's your belief that the 733 number 2 and Mr. Bethel's 718 number are -- they're dealing 3 with the same thing, the same issue? 4 A. Not entirely, and our number is 773 acre 5 feet, but I said I think that our number is 6 comparable to the 700 acre feet, which is the 7 20 percent fee that Mr. Bethel analyzed in his 8 analysis, so whether you do the reduction for 9 storage using our number here or you do the 14:54 10 reduction just by taking that 20 percent and saying 11 it hasn't been quantified, we don't know what 12 happened to it. It can't be counted as part of the 13 14 transferable yield. 15 same reduction. 16 Q. Either way, you get almost the That was my point. Did you do any analysis to determine 17 whether water left in Sugar Loaf at the end of one 18 year was carried over and delivered to Rocky Ford 19 High Line the next year? 14:55 20 A. No, I did not. 21 Q. And did you do any research of the 22 records to see if it was delivered to Rocky Ford 23 High Line in the next year? 24 25 A. Well, again, as I stated, in these 15 years where there's zeroes -- Mile High Court Reporting and Video, Inc. 303-202-0210 contact@milehighreporting.com Concerning the Application of: Busk-Ivanhoe, Inc. July 26, 2013 - Volume IV 899 1 2 3 Q. Mr. Sayler, that's not my question. Did you do any research of the High Line records? A. I think the High Line records and the 4 research we did indicate that, in these years when 5 there's zeroes here, that there was water probably 6 carried over in storage and delivered in that year 7 because of the fact that the Rocky Ford High Line 8 took more than what was actually brought through the 9 tunnel that year. 14:55 10 Q. And, in fact, Rocky Ford High Line's 11 contract with CF & I, contracts that appeared in the 12 minutes at some point, provided for carryover 13 storage, didn't they? 14 A. After the 20 percent fee was paid to 15 CF & I, which we can't quantify, but, yes, they 16 provided for carryover storage. 17 Q. And in several years the Rocky Ford High 18 Line minutes refer to reservoir water deliveries 19 that occurred early in the season, before the flows, 14:56 20 21 22 the Busk-Ivanhoe flows, would have filled up the storage for that year, don't they? A. There are instances in a limited number 23 of -- most of the Rocky Ford High Line minutes don't 24 give us specificity other than how much was taken 25 annually, but there are some of the minutes -- and I Mile High Court Reporting and Video, Inc. 303-202-0210 contact@milehighreporting.com Concerning the Application of: Busk-Ivanhoe, Inc. July 26, 2013 - Volume IV 900 1 think Mr. Bethel summarized it within his report -- 2 that indicate some uses early in the season, in 3 April, May, in a few years, yes. Q. 4 But you don't think it's a reasonable 5 assumption to assume that the water they had paid to 6 store would be carried over and delivered the next 7 year? A. 8 9 14:57 10 No, I'm not disagreeing that water was carried over. I'm saying that water that was carried over would have been after the 20 percent 11 fee and that that 20 percent fee has not been 12 quantified but is counted as part of what the 13 applicant is claiming in its historical use 14 analysis. 15 Q. In your water budget analysis -- I think 16 you may have discussed this with Mr. Krassa and some 17 on direct. 18 clear. 19 looked at all of the water that went through the 14:57 20 21 22 23 24 25 I'd just like to make sure that we're Your water budget analysis -- that analysis Rocky Ford High Line head gate, native and transmountain, correct? A. That's correct. It's referred to in the record typically as total water through structure. Q. But then, as you continued with your analysis, your beneficial use analysis, then you Mile High Court Reporting and Video, Inc. 303-202-0210 contact@milehighreporting.com Concerning the Application of: Busk-Ivanhoe, Inc. July 26, 2013 - Volume IV 901 1 started to focus only on the Busk-Ivanhoe component, 2 correct? 3 4 5 A. Can you repeat the question. I'm not sure I understood it. Q. As your analysis progressed, then you -- 6 well, let me just withdraw that question and ask a 7 different one. 8 believe you testified that only 75 percent of the 9 water imported was beneficially used; is that 14:59 10 11 12 Mr. Sayler, shortly before lunch, I correct? A. I think I did refer to the 75 percent number, yes. 13 MR. HAMRE: 14 we are looking at 9-F. If we could look at 9 -- oh, 15 Q. If you could look at 9-F -- 16 A. Okay. 17 Q. -- and your Table 4, which is Exhibit 9, 18 WSO 9-F, you show that gross diversions for the 19 Busk-Ivanhoe, Inc., portion averaged 2,516 acre 14:59 20 21 feet; is that correct? A. I think that the more accurate total- 22 diversion number to use is from the Column 3, the 23 right-hand column here. 24 Mr. Hamre, did not include these diversions during 25 this period that were recorded separately through The number that you used, Mile High Court Reporting and Video, Inc. 303-202-0210 contact@milehighreporting.com Concerning the Application of: Busk-Ivanhoe, Inc. July 26, 2013 - Volume IV 902 1 the Boustead Tunnel, so I think it's more accurate 2 to use the 2,557 acre feet. 3 Q. Okay, I'll go with 2557. Your Table 10, 4 your revised Table 10, showed that 2,311 were 5 beneficially used, correct? 6 A. No, that's not correct. MR. HAMRE: 7 Can we look at that one? 8 A. Can you refer me to which exhibit? 9 Q. As soon as I figure that out, I will. THE COURT: 15:01 10 11 10-B? I think it's 10-B. Is that the one? MR. HAMRE: 12 I'm having a hard time 13 reading it. 14 look like the 10-B is the revised Table 10. 15 A. 16 question. 17 Q. I believe it is 10-B. Yes, it does Okay, and then I've forgotten your I'm sorry. (By Mr. Hamre) I was suggesting to you 18 that this table shows that, between 1925 and 1986, 19 2,311 acre feet of water were beneficially used on 15:02 20 21 average. A. I don't think that characterizing it as 22 "beneficially used" is accurate. That's the 23 diversion of Busk-Ivanhoe water through the tunnel 24 reduced for periods for diversions that occurred 25 during periods of free river as well as during Mile High Court Reporting and Video, Inc. 303-202-0210 contact@milehighreporting.com Concerning the Application of: Busk-Ivanhoe, Inc. July 26, 2013 - Volume IV 903 1 periods of excess. So this 2311 that I'm using here is 2 3 still a diversion total through the Busk-Ivanhoe 4 Tunnel before we make any reduction for storage. 5 Q. So this hasn't been reduced for your 6 legal opinion on storage? 7 just one of them? 8 9 15:03 10 A. And is it zero years, or And it isn't correct to characterize it -- it's a totally different number from what was used under the Rocky Ford High Line. What I was 11 comparing it to is when Mr. Bethel analyzed how much 12 was used under the Rocky Ford High Line in his 13 Table 1 and then added in the 20 percent storage fee 14 as well as the transit losses. 15 He got the same number for that period 16 of time, so I don't think -- and if I said that this 17 morning, I misspoke. 18 used under the Rocky Ford High Line, even in 19 Mr. Bethel's analysis. 15:03 20 21 22 It's not what was beneficially It's what was beneficially used in the Rocky Ford High Line plus what was paid for that 20 percent storage fee. When you look at the 2311 in our revised 23 Table 1, that's Mr. Bethel's use under the Rocky 24 Ford High Line divided by .8 plus divided by another 25 almost-1 number for a small amount of transit loss Mile High Court Reporting and Video, Inc. 303-202-0210 contact@milehighreporting.com Concerning the Application of: Busk-Ivanhoe, Inc. July 26, 2013 - Volume IV 904 1 up above Turquoise Reservoir, but essentially that 2 2311 includes the 20 percent storage fee and our 3 2311 includes our 773 acre feet that we came up with 4 that we think at least was stored. So this is not a number that was 5 6 actually used and consumed or even put on the farms 7 under the Rocky Ford High Line. 8 closer number to that, and that would be the case in 9 Mr. Bethel's analysis as well. 15:04 10 Q. This would be a But you agreed a few moments ago that 11 there are elements of loss and there are deductions 12 that you make for water that, for one reason or 13 another, does not get all the way to the field that 14 you still normally would include as an element of 15 beneficial use? 16 A. And those are the losses that we 17 incorporated into our water budget analysis as well 18 as the 12-and-a-half-percent transit loss down the 19 river, but it doesn't include the 20 percent storage 15:05 20 21 fee or roughly the 700 acre feet a year that was stored. That, in my opinion, should come off of 22 23 this 2311, and that's what we've done over in our 24 right-hand column here to get to 1658 acre feet. 25 Q. Because of your assumptions about Mile High Court Reporting and Video, Inc. 303-202-0210 contact@milehighreporting.com Concerning the Application of: Busk-Ivanhoe, Inc. July 26, 2013 - Volume IV 905 1 storage and the way you colored the water once you 2 got to the steps after your water budget analysis, 3 the way you colored the water going through the head 4 gates as far as whether it was native or 5 transmountain water, your analysis of beneficial use 6 of the Busk-Ivanhoe water was not looking at the 7 historical beneficial use that did happen under the 8 Rocky Ford High Line? 9 It was the historical use that you 15:06 10 thought should have happened; isn't that true? You 11 showed water -- you attributed characteristics to 12 the water going through the head gate that were not 13 consistent with the type of water actually being 14 delivered at that time? 15 A. I don't understand that question. 16 Q. Isn't it true that, in your analysis, 17 you assumed water that came through the Busk-Ivanhoe 18 Tunnel in June was run down to the Rocky Ford head 19 gate and delivered as soon as it could get there? 15:06 20 A. In our water budget analysis? 21 Q. No, sir, in your analyses that followed A. Our reduction for excess -- periods when 22 23 24 25 that. there was excess under the Rocky Ford High Line? Q. Yes, all of your analyses that follow on Mile High Court Reporting and Video, Inc. 303-202-0210 contact@milehighreporting.com Concerning the Application of: Busk-Ivanhoe, Inc. July 26, 2013 - Volume IV 906 1 2 after your water budget analysis. A. You say all of our analyses, but I think 3 only one part of our analyses applies to the 4 question you're asking and that's why I'm not sure I 5 understand it. 6 Q. 7 analysis? 8 A. 9 15:07 10 11 12 13 14 15 16 And what do you call that aspect of your That was our analysis of how much to reduce the Busk-Ivanhoe diversions during periods that the Rocky Ford High Line total supply was excess. Q. So how do you refer to that, your excess-use analysis? A. That's our reduction for when there were times of excess in the Rocky Ford High Line. Q. But in that analysis, the way you 17 colored the water was not the way it actually 18 happened, was it? 19 15:08 20 21 A. I'm sorry. I don't understand. I don't know what you mean by "actually happened." Q. In that analysis, you assumed that water 22 came through the Busk-Ivanhoe Tunnel and was 23 delivered directly to the Rocky Ford head gate and 24 was used at that time, correct? 25 A. Yes, we reduced -- I think I understand. Mile High Court Reporting and Video, Inc. 303-202-0210 contact@milehighreporting.com Concerning the Application of: Busk-Ivanhoe, Inc. July 26, 2013 - Volume IV 907 1 We reduced the Busk-Ivanhoe diversions -- 2 Q. I haven't gotten to reductions yet. 3 A. Okay. 4 Q. I'm just talking about how you 5 characterized the water coming through the Rocky 6 Ford High Line head gate in any particular month. 7 A. Well, we didn't characterize it at all 8 in our water budget analysis. 9 total supply available, which was the amount 15:08 10 11 12 We looked at the diverted from in-basin water rights and I think would have included the Busk-Ivanhoe water, yes. Q. But in your analysis where you said, 13 hey, there's too much water coming through the Rocky 14 Ford High Line head gate in June of some particular 15 year, you attributed that to Busk-Ivanhoe water 16 based on the amount of Busk-Ivanhoe water coming 17 through the tunnel at that time, didn't you? 18 19 15:09 20 A. We compared the excess diversions in the Rocky Ford High Line to the water diverted through the tunnel, the Busk-Ivanhoe water, and it is 21 accurate to say that we attributed first any excess 22 to the Busk-Ivanhoe water under the premise that, if 23 there was excess water in the Rocky Ford High Line 24 and available supplies, they should not have been 25 diverting the Busk-Ivanhoe water rather than Mile High Court Reporting and Video, Inc. 303-202-0210 contact@milehighreporting.com Concerning the Application of: Busk-Ivanhoe, Inc. July 26, 2013 - Volume IV 908 1 diverting in-basin supplies. 2 So we assigned the excess, to the extent 3 that it was greater than the Busk-Ivanhoe diversion, 4 we assigned the excess to the Busk-Ivanhoe 5 diversion. Q. 6 Right, you assigned it to Busk-Ivanhoe 7 whether it was in the ditch or not. 8 been in storage? 9 A. 15:10 10 It might have I think I've testified I don't think that it was decreed for storage and so I think it's 11 appropriate to analyze the excess based upon it 12 being used for direct use. Q. 13 And that was the basis for my question, 14 that you analyzed it the way you thought it should 15 have happened and not necessarily the way the system 16 was operated? 17 whether it was transmountain water in the ditch or 18 not? 19 15:11 20 A. You called it transmountain water We have no way of knowing exactly the amount of transmountain water in the ditch on a 21 consistent, daily basis because of the record 22 available, so that's correct, yes. 23 Q. In any event, the amount of your 24 reduction -- I believe you just recently indicated 25 the amount of your reduction is based on your Mile High Court Reporting and Video, Inc. 303-202-0210 contact@milehighreporting.com Concerning the Application of: Busk-Ivanhoe, Inc. July 26, 2013 - Volume IV 909 1 assumption that storage on the east slope of 2 Busk-Ivanhoe water was not legally permissible? 3 A. The reduction for excess is based upon 4 the assumption that the Busk-Ivanhoe water was to be 5 diverted directly and used under the Rocky Ford High 6 Line and that it was not stored, yes. 7 Q. But the reason you attributed water 8 to -- you started out with an assumption that they 9 couldn't store it; therefore, they had to use it 15:12 10 11 12 13 directly, didn't you? A. I started out with what is my opinion of what their decree says, that it's direct water, yes. Q. Right, so your reduction for excess was 14 based on the assumption that they could not store 15 Busk-Ivanhoe water on the east slope lawfully? 16 17 18 A. I think I've answered that that's correct, yes. Q. And your free-river analysis, the amount 19 of water that you deducted based on your free-river 15:12 20 analysis, is also based on the same assumption that 21 water could not be stored lawfully on the east 22 slope, isn't it? 23 A. 24 25 That's correct. I should add there -- I don't know that it -THE COURT: Wait for a question, sir. Mile High Court Reporting and Video, Inc. 303-202-0210 contact@milehighreporting.com Concerning the Application of: Busk-Ivanhoe, Inc. July 26, 2013 - Volume IV 910 I told the witness to wait for the 1 2 question. MR. HAMRE: 3 Q. 4 Oh, thank you. (By Mr. Hamre) Let's move to your 5 discussion of expanded use after the enlargement of 6 Sugar Loaf Reservoir into Turquoise Reservoir. 7 believe you indicated this morning that Sugar Loaf 8 Reservoir was 10,000 acre feet and it was enlarged 9 to a hundred thousand acre feet; is that correct? 15:14 10 I Was that your testimony? A. 11 I think it was something over 10,000. 12 I'm not sure of the exact capacity. 13 original water right was for 17,000 but there was a 14 very significant enlargement because Turquoise then 15 was over a hundred thousand. Q. 16 I think the The actual numbers were -- I mean the 17 actual size of Sugar Loaf was close to 17,000 and 18 Turquoise was 130, wasn't it? A. 19 15:14 20 I know the 17,000 is the original decree for Sugar Loaf. I know that Turquoise is over a 21 hundred thousand. 22 over. 23 Q. I don't recall the exact amount But you don't know whether the space 24 actually available to the Rocky Ford High Line 25 changed materially, do you? Mile High Court Reporting and Video, Inc. 303-202-0210 contact@milehighreporting.com Concerning the Application of: Busk-Ivanhoe, Inc. July 26, 2013 - Volume IV 911 1 A. I do not. 2 Q. In your discussion with Mr. Hallford 3 this morning regarding when Turquoise -- storage in 4 the enlarged Turquoise Reservoir started, you said 5 that you did not know when the contract was 6 completed but, based on the Rocky Ford High Line 7 minutes from 1968, which is Exhibit A-265, you drew 8 the conclusion that it had been completed and Rocky 9 Ford High Line was storing water in Turquoise 15:15 10 because of the last line of the first paragraph of 11 page 5 of 10 that refers to 3,663 acre feet in 12 storage, correct? 13 A. Within your question there you stated 14 that I stated that the contract had been completed. 15 I think these 1968 minutes refer to the fact that 16 the contract was still being negotiated so -- 17 Q. Actually, your testimony this morning, 18 what I heard, was that you did not know when the 19 contract was completed. 15:16 20 A. Yes, that's what I was about to say. I 21 don't know when it was completed. It's discussed in 22 these minutes. 23 morning was that water was actually stored in 1968 24 and that's what I was showing here. 25 inference yesterday in some of the questioning was What I was testifying to this I thought the Mile High Court Reporting and Video, Inc. 303-202-0210 contact@milehighreporting.com Concerning the Application of: Busk-Ivanhoe, Inc. July 26, 2013 - Volume IV 912 1 that there was no water that could be stored in 2 1968. 3 4 Q. Do you know whether this 3,663 was stored in Sugar Loaf? 5 A. I do not. 6 Q. Do you recall seeing Mr. Bethel's 7 exhibit in which he plotted the location of Sugar 8 Loaf Reservoir in relation to Turquoise Reservoir? 9 He also had plotted the proposed Lake Fork 15:17 10 Reservoir. 11 12 A. referring to. 13 14 Yes, I recall that exhibit that you're Q. And the Turquoise Dam was downstream from Sugar Loaf Dam, wasn't it? 15 A. I think that that's correct. I mean, 16 Turquoise essentially was a bigger reservoir, in my 17 opinion, built on top of the existing Sugar Loaf 18 Reservoir. 19 15:17 20 21 Q. Would you like to look at Mr. Bethel's A. No. map? They probably moved the dam down a 22 little bit. 23 it a bigger reservoir. 24 25 Q. I think that's probably right, to make So doesn't this indicate that, in fact, that 3,66 three feet of water was, in fact, in Mile High Court Reporting and Video, Inc. 303-202-0210 contact@milehighreporting.com Concerning the Application of: Busk-Ivanhoe, Inc. July 26, 2013 - Volume IV 913 1 storage in Sugar Loaf while they were completing 2 Turquoise? 3 A. Turquoise was completed in 1968. This 4 is an October 1968 report, so my testimony was just 5 demonstrating that, in our graph, we showed how much 6 storage occurred after Turquoise was enlarged 7 starting in 1968, versus prior to that, which was 8 '67 and before, and showed that it increased by over 9 50 percent. And I was just using this exhibit to 15:18 10 11 refute a statement that was made yesterday that 12 implied, because there was no contract in 1968, that 13 there was no diversion or storage of Busk-Ivanhoe 14 water, and I think this indicates that that's not 15 the case. 16 Q. 17 18 19 15:19 20 Well, I believe the issue was whether the water was stored in Sugar Loaf or in Turquoise. A. Well, as of October of 1968, Sugar Loaf would have had Turquoise sitting on top of it so I'm not sure I understand the question. MR. HAMRE: Pardon me while I dig up an 23 THE COURT: Take your time. 24 (Pause in the proceedings.) 25 THE COURT: 21 22 exhibit. Mr. Hamre, why don't we go Mile High Court Reporting and Video, Inc. 303-202-0210 contact@milehighreporting.com Concerning the Application of: Busk-Ivanhoe, Inc. July 26, 2013 - Volume IV 914 1 ahead and take the afternoon break and you will have 2 time to look for that. 3 MR. HAMRE: 4 excellent idea, Your Honor. THE COURT: 5 6 That sounds like an All right. recess until 3:35. 7 (Recess taken.) 8 THE COURT: 9 15:45 10 Please be seated. back on the record on 2009CW142. Parties and Mr. Sayler, you're still under oath, sir. 13 THE WITNESS: 14 THE COURT: 15 We're counsel are present. 11 12 We'll be in Q. Yes. Mr. Hamre? (By Mr. Hamre) Mr. Sayler, I have 16 determined that the exhibit I was hunting for was 17 Exhibit A-211. Do you recall seeing this map? 18 A. Yes, I do. 19 Q. This shows that the Turquoise Dam was 15:45 20 21 actually built downstream of the Sugar Loaf Dam, doesn't it? 22 A. Yes, it is. 23 Q. Regardless of the status of Sugar Loaf 24 Reservoir in 1968, would you agree that, without a 25 contract with the federal government in place, Rocky Mile High Court Reporting and Video, Inc. 303-202-0210 contact@milehighreporting.com Concerning the Application of: Busk-Ivanhoe, Inc. July 26, 2013 - Volume IV 915 1 Ford High Line would not have been able to use more 2 storage capacity in Sugar Loaf, slash, Turquoise 3 Reservoir than they had been historically? 4 A. I think sometimes people store in Bureau 5 facilities, from my knowledge, without a contract 6 being completed, so, no, I don't think that that's 7 the case. 8 Q. 9 15:46 10 11 It's your assumption that they stored -- they were able to store more water than historically? A. Not necessarily more; I'm just saying 12 whether or not they stored in the facility I don't 13 think was necessarily dependent upon whether they 14 had a completed contract. 15 16 Q. Okay. But my question was: Do you know if they stored more? 17 A. No, I do not. 18 Q. Let's turn to Exhibit WSO 85. 19 15:47 20 21 This is the graph that you and Ms. Wynne have testified to in which you show a higher average after or beginning in 1968. 22 A. That's correct. 23 Q. And it's my understanding that you 24 assert this increase was due to the construction of 25 Turquoise Reservoir; is that correct? Mile High Court Reporting and Video, Inc. 303-202-0210 contact@milehighreporting.com Concerning the Application of: Busk-Ivanhoe, Inc. July 26, 2013 - Volume IV 916 A. 1 2 We used it as an example to show that, with more storage, you can divert more water. Q. 3 My question is: Do you know whether the 4 diversion of more water is the reason -- I'm sorry. 5 Do you know whether the construction of Turquoise 6 Reservoir is the reason for more Busk-Ivanhoe water 7 having been diverted? A. 8 9 No, this is simply a comparison of before and after. Q. 15:48 10 From a hydrologic standpoint, the period 11 shown after 1968 through 1986 was a wetter period, 12 wasn't it? A. 13 The period in the 1980s, '84, '85, '86, 14 '86, '85, '84, '83, generally, especially '83 and 15 '84, was a wetter period. 16 recent drought in 2002 and again in 2012, was one of 17 the most severe droughts we've had and, for example, 18 1980 was a severe drought condition. So I think there are, after 1968, there 19 15:49 20 21 '77, 1977, until the are very dry years, like 1977 and 1980, and very wet years, like '83 and '84. Q. 22 Now, you were just pointing to the year 23 1981 as one of your examples of a drought year, but 24 that's actually higher than the average 368, isn't 25 it? This isn't hydrology. This is diversions, Mile High Court Reporting and Video, Inc. 303-202-0210 contact@milehighreporting.com Concerning the Application of: Busk-Ivanhoe, Inc. July 26, 2013 - Volume IV 917 1 correct? 2 A. That's correct. 3 Q. My question to you is actually about 4 hydrology. 5 period 1968 to 1986 on average a wetter period than 6 the 1925-through-1967 period on average? 7 A. In the Colorado River Basin, was the And on average I haven't isolated 1968 8 through '86 so I can't say that for certain. 9 say there were very dry years and very wet years 15:50 10 11 I can within that period. Q. And you heard Mr. Bethel's testimony -- 12 perhaps it was Mr. Simpson. 13 sure -- but to the effect that, in '83 or '84, they 14 were actually asked to divert all the water they 15 could even if they didn't need it just to get it out 16 of the Colorado River Basin, correct? 17 A. I don't recall for I recall some testimony to that 18 regarding one of those years. 19 specifics. 15:50 20 21 Q. I don't recall the You don't have any basis to believe that was not correct, do you? 22 A. It's information I'm not familiar with. 23 Q. If the year 1983, in which no 24 Busk-Ivanhoe water was used by the Rocky Ford High 25 Line and no credit was taken by Mr. Bethel, if the Mile High Court Reporting and Video, Inc. 303-202-0210 contact@milehighreporting.com Concerning the Application of: Busk-Ivanhoe, Inc. July 26, 2013 - Volume IV 918 1 year 1983 was a zero, that would lower your red 2 average line, wouldn't it? A. 3 If you took out a high year like 1983, 4 then the average would go down, just like, if you 5 took out a low year, the average would go up. Q. 6 Wouldn't it be appropriate to take out 7 1983 if they weren't diverting water because they 8 wanted to but because they were told to? A. 9 15:51 10 11 12 As I mentioned, I don't know for what period of time they were told to, if they were told to. That's information I wasn't familiar with. Q. My premise was that they were told to 13 and my question was: 14 take that year out if they were told to? 15 16 17 A. Wouldn't it be appropriate to I suppose it would depend on how much of the year they were told to do that. Q. Let's try it again: My premise is that 18 they were told to divert water that whole year 19 because they wanted to get it out of the Colorado 15:52 20 River and not because they wanted it. Assuming 21 those are the facts, would it be appropriate to take 22 out 1983? 23 A. If they were told to just divert it to 24 get it out of the Colorado River for the entire 25 year, that might be appropriate, I suppose. Mile High Court Reporting and Video, Inc. 303-202-0210 contact@milehighreporting.com Concerning the Application of: Busk-Ivanhoe, Inc. July 26, 2013 - Volume IV 919 1 Q. Let's move on to the study period. 2 Isn't it true that, in selecting a study period, the 3 engineering consideration is stream conditions? 4 That's where the numbers come into play, isn't it? 5 You're trying to maintain historical stream 6 conditions, flows? 7 A. Not if those historical stream 8 conditions included injury, for example, so then I 9 don't think it would be true. 15:53 10 Q. Well, that's adding a legal 11 consideration, isn't it? 12 the purely engineering component. 13 14 15 A. I'm just asking you for I think I've testified I don't think it's just a legal consideration. Q. I'll accept that as your opinion. Isn't 16 it true that conditions on the stream in Division 5 17 did not change materially after 1986 because of 18 diversions by the Busk-Ivanhoe system? 19 15:54 20 21 22 A. The diversions of the Busk-Ivanhoe water did not change significantly after '86. That's correct. Q. So they did not cause a material change 23 in stream conditions on Ivanhoe Creek or downstream 24 from there as compared to historically? 25 A. As compared to before 1986, I think Mile High Court Reporting and Video, Inc. 303-202-0210 contact@milehighreporting.com Concerning the Application of: Busk-Ivanhoe, Inc. July 26, 2013 - Volume IV 920 1 2 that's correct. Q. Regarding undecreed municipal use, I 3 think you testified in your direct testimony that it 4 is your belief that periods of undecreed municipal 5 use should be treated as zeroes. 6 questioning of you, you stated that you have not 7 been involved in changes of transmountain water 8 rights for your clients. Is it your understanding, however, that, 9 15:55 10 Earlier in my in the Pueblo Board of Water Works change of their 11 half of the Busk-Ivanhoe system, there were 20 years 12 of undecreed municipal use and they were not 13 assigned zeroes for that period of time? MR. HALLFORD: 14 Your Honor, I had 15 previously objected to the attempted estoppel by 16 Pueblo conduct, which is a step removed from 17 estoppel by Pueblo's change decree. THE COURT: 18 19 Objection sustained. It's not relevant what happened in that decree. MR. HAMRE: 15:55 20 I'll move on, Your Honor, 21 but my point was simply, if the question is what 22 happens in other cases -- 23 THE COURT: Right. 24 MR. HAMRE: -- that's an example. 25 Q. (By Mr. Hamre) Mr. Krassa asked you a Mile High Court Reporting and Video, Inc. 303-202-0210 contact@milehighreporting.com Concerning the Application of: Busk-Ivanhoe, Inc. July 26, 2013 - Volume IV 921 1 series of questions regarding the Division 2 Engineer's enforcement authority and potential for 3 the Division Engineer to obtain an injunction. 4 question for you is similar but somewhat different. My 5 Do you have any understanding of whether 6 a water user who believes he or she is being injured 7 by someone else's unlawful diversion can seek an 8 injunction to have that diversion stopped? 9 15:56 10 11 A. I don't recall any examples that I am familiar with, no. Q. My question is whether you have an 12 understanding of whether a water user could do that 13 or not, not whether you are familiar with examples. 14 A. I don't know, since I haven't been 15 involved in anything like that that I can recall, I 16 guess my answer is I'm not sure exactly what a water 17 user can do to force someone else to stop, if that's 18 what your question is. 19 15:57 20 Q. Fair enough. Let's go to what I am certain must be the judge's favorite subject, the 21 Burlington case. 22 Mr. Hallford in your direct testimony and I'd like 23 to ask you some questions about those. 24 connection with the 1885 direct-flow right -- 25 You drew a couple of charts for THE COURT: In And, Mr. Hamre, you're Mile High Court Reporting and Video, Inc. 303-202-0210 contact@milehighreporting.com Concerning the Application of: Busk-Ivanhoe, Inc. July 26, 2013 - Volume IV 922 1 referring to WSO 91? MR. HAMRE: 2 Yes, Your Honor, thank you. 3 This is WSO 91 that I'm referring to that Mr. Sayler 4 drew on direct. Q. 5 (By Mr. Hamre) You may have said in 6 your direct testimony that this increase in 1909 7 where diversions went from 200 or less to 8 something -- that that's when they hit their 350 cfs 9 diversion rate. 15:58 10 11 That increase in diversions coincided with their beginning to irrigate tens of thousands of additional acreage. 12 I believe the number that was reported 13 in that case was 26,000 acres or something of that 14 sort. Is that correct? A. 15 Yes, it coincided -- in 1909 is when 16 they started the unlawful use, which was irrigation 17 below Barr Lake. 18 was. 19 15:58 20 Q. I think that's what the ruling So when the Court excluded the additional 150 cfs, that was excluded simply because 21 they'd never used it before for decreed purposes, 22 correct? 23 24 25 A. The evidence was that it had not been used before 1909. Q. That's correct. It hadn't been used before 1909 and it Mile High Court Reporting and Video, Inc. 303-202-0210 contact@milehighreporting.com Concerning the Application of: Busk-Ivanhoe, Inc. July 26, 2013 - Volume IV 923 1 2 had never been used on the decreed lands? A. Yes, I think the maximum that the 3 Burlington had diverted prior to that time was the 4 200 cfs. 5 Q. But what the Court decided in 6 determining the study period for that case was that 7 they should look at the period from 1885 to 1909 and 8 nothing after that; isn't that true? 9 15:59 10 A. It's true that the Court said use an 1885-to-1909 study period. The effect of that was 11 to count zero use for the 150 cfs of the 350 cfs 12 water right that was unlawfully used beyond that 13 period for the next 95 years. 14 Q. If the Court had added in zeroes from 15 the period of time from 1909 to 2004, in addition to 16 saying you're limited to 200 cfs, it would have 17 reduced the amount that they could divert to about a 18 fifth of 200 cfs, wouldn't it? 19 16:00 20 A. No, I don't think that's at all correct. I think what happened is that there was a use for 21 the first 25 years under the 200 cfs that's 22 demonstrated by what I show here in the black 23 cross-hatch, and then, starting in 1909, there was 24 an additional use under the remaining 150 cfs of the 25 water right that enlarged the use on these lands Mile High Court Reporting and Video, Inc. 303-202-0210 contact@milehighreporting.com Concerning the Application of: Busk-Ivanhoe, Inc. July 26, 2013 - Volume IV 924 1 below Barr Lake that the Court thought, found, was 2 unlawful. But the use, the initial use above Barr 3 4 Lake of the 200 cfs, essentially it was recognized 5 that that use continued on. 6 in a manner similar to 1885 to 1909, so it had the 7 effect of zeroing out this additional unlawful use 8 that it found occurred starting in 1909 by just 9 excluding that from the study period. 16:01 10 Q. It continues on today But the exclusion of an increased flow 11 rate based on an undecreed place of use -- I mean, 12 keeping them at their original 200 cfs rather 13 than -- excluding that is an entirely different 14 mathematical operation than adding a whole series of 15 zeroes to an average, isn't it? 16 A. No, I don't think it is. You have to 17 put it in the context -- I showed this dotted line 18 here which would represent what the applicants in 19 the Burlington case came forward and said would have 16:02 20 been the long-term average consumptive use, and that 21 would have been this lesser use for these 25 years 22 and then the greater use thereafter. 23 If the applicants had gotten what they 24 had argued was the lawful use of the water right, 25 they would have ended up with an average that would Mile High Court Reporting and Video, Inc. 303-202-0210 contact@milehighreporting.com Concerning the Application of: Busk-Ivanhoe, Inc. July 26, 2013 - Volume IV 925 1 have included this unlawful red use. Instead, by 2 restricting them to the 1885-to-1909 period, their 3 average was restricted to this lower amount of 4 consumption that occurred under the 200 cfs water 5 right. 6 So, again, all of this consumptive use 7 after 1909 was zeroed out in the quantification of 8 the Burlington direct-flow water right. Q. 9 16:03 10 isn't it? 12 A. It pertains to the 1885 storage right as well as the 1908 and 1909 water rights. Q. 14 15 WSO 92 is your chart that pertains to the 1885 storage right, 11 13 Let's look at Exhibit WSO 92: Where on your diagram is the period 1897 to 1909? A. 16 The study period that was found to be 17 appropriate in the Burlington case varied depending 18 upon water right, which water right you looked at. 19 On the previous WSO 91, as I indicated, for the 1885 16:04 20 direct-flow water right, the study period was 1885 21 to 1901, resulting in the effect of zeroing out the 22 enlarged use after 1909. 23 24 25 Q. I understand that's your opinion on A. For these water rights -- and I show two that. Mile High Court Reporting and Video, Inc. 303-202-0210 contact@milehighreporting.com Concerning the Application of: Busk-Ivanhoe, Inc. July 26, 2013 - Volume IV 926 1 of them here and there's a lot of information on 2 here, but for the 1885 storage right the study 3 period that was appropriate was found to be 1927 4 through 2004. 5 6 7 Q. Why? Why did the Court pick that study period? A. I don't remember all -- I can't tell you 8 the details. 9 period that was -- 16:05 10 Q. It was found to be a representative In fact, Mr. Sayler, wasn't it found to 11 be a representative period because it was similar to 12 the diversions between 1897 and 1909? 13 A. That could very well be, in which case, 14 including 1885 to 1909 on top of this average would 15 not have really had any effect with these water 16 rights. 17 Q. Didn't the Court, in fact, find that the 18 average in this period -- there's a gap in the 19 middle that it didn't consider at all, but there was 16:05 20 a period prior to that and didn't it find that the 21 diversions during that 13-year period from 1897 to 22 1909 was almost the same as the period from -- the 23 average from the period of 1927 through 2004 when 24 the metro-pump water was taken out? 25 they found it was okay to use this period? Isn't that why Mile High Court Reporting and Video, Inc. 303-202-0210 contact@milehighreporting.com Concerning the Application of: Busk-Ivanhoe, Inc. July 26, 2013 - Volume IV 927 1 A. I'm not sure. You mentioned 1897 to 2 1909 and that I'm not sure of because the water 3 right was decreed in 1885, but I think, as I 4 testified this morning, the important part about 5 these water rights was that the Court found that, 6 yes, there was an historical use under the water 7 rights diverted from the South Platte River and that 8 that use was not increased from the metro pumps. 9 And even if that was the same historic 16:06 10 use going back earlier than 1927, it would have had 11 the same effect, so you have a long-term average of 12 use, and then part of that water supply that used to 13 be taken from the South Platte River as of 1968 when 14 the Metro -- North Metro Wastewater Treatment Plant 15 was moved -- ended up being satisfied to the 16 Burlington to these three water rights by operating 17 the metro pumps. 18 19 16:07 20 And as I show here in the diagram, what the Court found was that that was an unlawful, undecreed point of diversion and that that had to be 21 zeroed out, that part of the use that continued, 22 even though it didn't constitute an increase in 23 diversions overall. 24 25 So I'm not sure -- I think I probably agree with you that the period before this, since it Mile High Court Reporting and Video, Inc. 303-202-0210 contact@milehighreporting.com Concerning the Application of: Busk-Ivanhoe, Inc. July 26, 2013 - Volume IV 928 1 wasn't included in the study period, was found to be 2 not significantly different than the period shown 3 here, and, therefore, this period beginning in 1927 4 is representative. Q. 5 6 Is representative of what, is really the question, though, isn't it? A. 7 It was representative of the lawful 8 historical use of the water right and the unlawful 9 portion was cut out with the metro pumps. Q. 16:07 10 It was representative of the lawful 11 historical use of the water right prior to 1909 12 before there had been any expansion? A. 13 Well, the study period that was decreed 14 as the 1927 to 2004 and 1927 to 1983 periods here, 15 so I think -Q. 16 Can you look at Exhibit A-352. Do you 17 recall when Mr. Bethel testified about A-352 and he 18 was looking at Findings of Fact 408 and 419? 19 A. Yes, I recall some of that testimony. 16:08 20 Q. And if I recall 419 -- well, wait, 21 sorry. 22 '85 but it was put into operation in 1897, right? 23 24 25 Let's look at 408. A. Barr Lake was decreed in I guess I don't recall. I can't answer that question. Q. And I think we can assume that there Mile High Court Reporting and Video, Inc. 303-202-0210 contact@milehighreporting.com Concerning the Application of: Busk-Ivanhoe, Inc. July 26, 2013 - Volume IV 929 1 were no metro pumps in 1909? 2 A. That's correct. They went in in 1968. 3 Q. And the Court found that the period 4 that -- the amount of use of the average during this 5 period from 1897 to 1909 represented the development 6 of the water right but allowed the use of 1927 to 7 2004 because it was very similar to the earlier 8 period that represented the original development of 9 the water right, right? A. 16:10 10 Exactly. The 5.511 between 1897 and 11 1909 was similar to the 5,456 that occurred from 12 1927 to 2004, which would be as I've shown here on 13 WSO 92. Q. 14 But there's no years of zeroes in any of 15 this? 16 an unauthorized point of diversion? 17 It just says you can't include diversions at A. Well, in this particular statement, 18 that's true, but if you go back to paragraph 168 19 through, I think, 180, it specifically talks about 16:11 20 the metro pumps. All that this paragraph 408 is 21 doing is showing that a like amount of water was 22 diverted in both parties' analyses. 23 Then what 168 to 180 said is, hey, part 24 of that water that was diverted after 1968, even 25 though it didn't increase the diversion, total Mile High Court Reporting and Video, Inc. 303-202-0210 contact@milehighreporting.com Concerning the Application of: Busk-Ivanhoe, Inc. July 26, 2013 - Volume IV 930 1 diversion through the Burlington Ditch, but that 2 part of that water diverted after 1968 -- I believe 3 9,600 acre feet a year -- was unlawfully diverted at 4 the metro pumps and had to be excluded from the 5 analysis and zeroed out. Q. 6 If we were going to put a line on this 7 diagram or your chart here that showed the average 8 from 1927 through 2004 and that average excluded the 9 metro pumps from '68 to 2004, where would that -- I 16:12 10 mean, where would that line be? A. 11 I don't have the exact numbers. This is 12 kind of an illustrative example, but it would be -- 13 the 1927-to-2004 average would be reduced. Q. 14 Yeah, you've got your block here of the 15 metro pumps water and, because this part was taken 16 out, if you were going to average this block with 17 this block, excluding the red block there, your 18 average would be somewhere in the middle here, 19 wouldn't it? A. 16:12 20 21 representation, yes. Q. 22 23 And didn't the Court find that that amount was comparable to the 1897-to-1909 volume? A. 24 25 I think that's an accurate case. No. In fact, I'm certain that isn't the It was two separate issues and what the Court Mile High Court Reporting and Video, Inc. 303-202-0210 contact@milehighreporting.com Concerning the Application of: Busk-Ivanhoe, Inc. July 26, 2013 - Volume IV 931 1 was determining here between Englewood, an 2 objector's position, and the applicant's position 3 was that the total amount diverted for this 1885 4 storage right was not significantly different in the 5 1897-to-1909 period than the 1927-to-2004 period. Then separately it addressed that those 6 7 diversions, not only for the 1885 storage right, but 8 also for the 1908 and 1909 right -- they were all 9 diverted at the Burlington head gate and added up to 16:13 10 an average of9600 acre feet a year. It separately determined, as discussed 11 12 in paragraphs 168 to 180, that those diversions 13 should be zeroed out from the Burlington historical 14 diversions, and that affected each of these water 15 rights. Q. 16 I think we read that differently. 17 move on. 18 agree that including years of zeroes, as you propose 19 to do, results in a lower average than only looking 16:14 20 21 24 25 Would you at the years of use in accordance with the decree and averaging those numbers? 22 23 Maybe we can agree on this: Let's A. I'm sorry. Can you ask that question Q. Would you agree that including years of again. zeroes that represent a period of undecreed use Mile High Court Reporting and Video, Inc. 303-202-0210 contact@milehighreporting.com Concerning the Application of: Busk-Ivanhoe, Inc. July 26, 2013 - Volume IV 932 1 results in a lower average than only looking at the 2 years of use in accordance with the decree? A. 3 I would agree with everything you said 4 except for in accordance with the decree. 5 sure exactly what you mean there, but including 6 zeroes for part of the period would reduce the 7 average, yes. Q. 8 9 16:14 10 11 I'm not If you had a period of use in accordance with the decree and a period of undecreed use after that. A. Okay. Then including the zeroes for the 12 later period would decrease the average for the 13 overall period. 14 Q. That's correct. And isn't it also true that including 15 years of zeroes in this case would result in stream 16 conditions that did not exist historically? 17 A. Including zeroes in this case would 18 reduce the transferable yield and, yes, result in 19 adding water to the river, just the same as 16:15 20 excluding or including zeroes for the metro pumps 21 for these three water rights in the Burlington case 22 resulted in more water to the river because this use 23 was found to be unlawful and that it should have 24 been in the river historically in the first place. 25 That's my interpretation of the Burlington decree. Mile High Court Reporting and Video, Inc. 303-202-0210 contact@milehighreporting.com Concerning the Application of: Busk-Ivanhoe, Inc. July 26, 2013 - Volume IV 933 Q. 1 Excluding the metro pumps here resulted 2 in exactly the same number as occurred in 1897 to 3 1909. That's what the Court said here, isn't it? A. 4 No, I don't believe that that's the 5 case. 6 was similar to this post-1927 period, separate from 7 the metro-pumps issue. 8 9 16:16 10 11 12 13 14 I think what the Court said is 1897 to 1909 Q. Towards the end of your testimony this morning, you said that the transferable amount should be limited to the amounts historically and lawfully used. A. Is that correct? I think I had the word "beneficially" in there as well. Q. You probably did, but the volumetric 15 limits that you propose result in a number that is 16 less than the amount historically, lawfully, and 17 beneficially used, don't they? 18 19 16:17 20 A. No, I don't believe that they do. upon my analysis, they result -- that's the point of the result of my analysis. The 1211 acre feet per 21 year would be the average of what was used 22 beneficially and for lawful purposes. 23 Based Q. It's the West Slope Opposers' contention 24 that zeroes have to be included because there need 25 to be consequences for 20 years of undecreed use; Mile High Court Reporting and Video, Inc. 303-202-0210 contact@milehighreporting.com Concerning the Application of: Busk-Ivanhoe, Inc. July 26, 2013 - Volume IV 934 1 2 3 4 isn't that correct? A. I think that's one position, yes, similar to what was ruled in Burlington. Q. So the consequences for 20 years of 5 undecreed use should be that the Applicant's 6 quantification gets reduced permanently? 7 A. Well, consequences, I guess, are 8 consequences, so I'm not sure I understand your 9 question. 16:18 10 Q. No doubt. Let's move on to your 11 discussion of injury. 12 Busk-Ivanhoe water rights are junior to the Cameo 13 water rights and, in fact, isn't it true that they 14 are interlaced? 15 priorities and some of the Busk-Ivanhoe water rights 16 are senior to some of the Cameo water rights, 17 conversely? 18 19 16:18 20 A. You testified that the They both have a number of I think my testimony was exactly that, that -- and specifically the 119 cfs Cameo, which is the most junior Cameo water right, would be junior 21 to the Busk-Ivanhoe. The other Cameo water rights 22 would be senior to the Busk-Ivanhoe, although 23 frequently there's a bypass call to one of those 24 Cameo water rights that could have a priority date 25 that could be either junior or senior to the Mile High Court Reporting and Video, Inc. 303-202-0210 contact@milehighreporting.com Concerning the Application of: Busk-Ivanhoe, Inc. July 26, 2013 - Volume IV 935 1 Busk-Ivanhoe. And during the times of those bypass 2 3 calls, that's the level of the water rights on the 4 Colorado River that are getting shut down and that 5 have been impacted by the expanded use. Q. 6 7 16:19 10 I didn't follow that. Which water rights are getting shut down by Busk-Ivanhoe? A. 8 9 I'm sorry. Well -- and I think I testified to this this morning -- for example, right now there's a 1921 bypass call to the 730 cfs 1908 water right at 11 Cameo, but so the real administration date on the 12 river right now is 1921, not 1908 at the Cameo, and 13 that's because Division 5 shuts down all the water 14 rights in the basin that are junior to 1921 and they 15 can still satisfy that swing right or that 1908 16 right at the dry-up point at Cameo. So any water right right now in this 17 18 example, just to use that as an example of how it 19 can work, any water right right now on the Colorado 16:20 20 that's junior to 1921 above Cameo is out of 21 priority. 22 Q. And how much is Busk-Ivanhoe diverting A. When I last checked yesterday or the day 23 24 25 now? before, this weekend they were diverting around 10 Mile High Court Reporting and Video, Inc. 303-202-0210 contact@milehighreporting.com Concerning the Application of: Busk-Ivanhoe, Inc. July 26, 2013 - Volume IV 936 1 cfs. As of yesterday or the day before, they were 2 diverting five to six cfs. Q. 3 I did not check today. And that is consistent with -- and I am 4 blanking the name. 5 Mr. Kuhn's testimony that typically when, by the 6 time the Cameo call comes on, Busk-Ivanhoe -- 7 there's very little, if any, water available to 8 Busk-Ivanhoe water rights, isn't there? A. 9 16:21 10 That is consistent with I guess a lot of people wouldn't define 10 cfs as being a little bit of water. For example, 11 over the course of an entire month, that's 20 acre 12 feet a day or roughly 600 acre feet. Q. 13 But the Busk-Ivanhoe water rights are 14 not going to be diverting 10 acre feet a day. 15 would notice they've already dropped by five cfs, 16 right? 17 A. You Well, five cfs is 10 acre feet a day. 18 noticed as recently as this weekend that they were 19 dropping about 10 cfs and that would be about 16:21 20 21 22 23 24 25 20 feet a day. Q. Do you know how quickly that will continue to drop? A. Well, I would assume that under current -Q. Do you know how quickly that will Mile High Court Reporting and Video, Inc. 303-202-0210 contact@milehighreporting.com I Concerning the Application of: Busk-Ivanhoe, Inc. July 26, 2013 - Volume IV 937 1 continue to drop? A. 2 3 Saturday -THE COURT: 4 5 Well, it's dropped from 10 cfs on no. Sir, the question is yes or Do you know? THE WITNESS: 6 No, I don't. It depends 7 on climate, precipitation, rainfall that might 8 occur. Q. 9 16:22 10 (By Mr. Hamre) Thank you. we're going to look at Exhibit WSO 80. I believe This is the 11 map of the Colorado River Basin and the boundaries 12 of the river district. 13 A. Okay. 14 Q. And would you agree that diversions by 15 the Busk-Ivanhoe system cannot impact the Shoshone 16 call? 17 A. Yes. I mean, the Shoshone call is 18 located upstream from where the Roaring Fork comes 19 in and so the Busk-Ivanhoe diversions up here in the 16:23 20 upper reaches of the Fryingpan Basin, which then 21 flows into the Roaring Fork and flows into the 22 Colorado below Shoshone, would not have a direct 23 impact on the Shoshone call. 24 25 Q. And in your direct testimony you were talking about potential impacts to the Middle Park Mile High Court Reporting and Video, Inc. 303-202-0210 contact@milehighreporting.com Concerning the Application of: Busk-Ivanhoe, Inc. July 26, 2013 - Volume IV 938 1 Water Conservancy District potentially caused by 2 Busk-Ivanhoe. 3 time Middle Park Water Conservancy District was 4 directly affected by a Cameo call? A. 5 Can you tell me when was the last I don't think my testimony was with 6 regard specifically to the Middle Park District. 7 was with regard to water rights, including water 8 rights that are located within the Middle Park 9 District, and as of right now, for example, any 16:24 10 11 12 water right junior to 1921 is affected by a Cameo call. Q. Your opinion was essentially that, if 13 there's less water in the river, some junior is 14 going to get shorted? 15 It A. I think that's an accurate statement 16 when there's a call on, yes, when there's unmet 17 supply, in other words. 18 Q. When there's a call on? 19 A. Unmet demand. 16:24 20 Q. But you can't say that the difference 21 between implementation of Mr. Bethel's volumetrics 22 and the implementation of your volumetrics are going 23 to translate to any specific amount of injury to any 24 specific water right, correct? 25 A. I have not specifically analyzed the Mile High Court Reporting and Video, Inc. 303-202-0210 contact@milehighreporting.com Concerning the Application of: Busk-Ivanhoe, Inc. July 26, 2013 - Volume IV 939 1 specific water rights that would be impacted. 2 described those in those three general categories. Q. 3 I've And isn't it true that implementation of 4 Mr. Bethel's volumetric limits will not result in 5 any change to the calls seen historically? A. 6 I think that that's true. 7 MR. HAMRE: Okay, no further questions. 8 THE COURT: Redirect, Mr. Hallford? REDIRECT EXAMINATION 9 16:25 10 BY MR. HALLFORD: Q. 11 We're almost done, Mr. Sayler. Both 12 Mr. Krassa and Mr. Hamre asked you about changes in 13 stream conditions that might occur with and without 14 the terms and conditions you proposed, and 15 Mr. Krassa specifically focused on the tense of the 16 verbs you used, that there will be, you know, that 17 there will be prospective injury. You then, in cross examination from 18 19 16:26 20 Mr. Hamre, talked about the past effects of unlawful use. Can you clarify what you were intending to say 21 about the effect of the undecreed or unlawful use 22 practices as they have or will affect the Colorado 23 River Basin water supply? 24 25 A. In my opinion, the unlawful or non- beneficial uses of the Busk-Ivanhoe water have Mile High Court Reporting and Video, Inc. 303-202-0210 contact@milehighreporting.com Concerning the Application of: Busk-Ivanhoe, Inc. July 26, 2013 - Volume IV 940 1 affected west-slope water rights, have injured 2 west-slope water rights historically at times that 3 there was a call, and that, if the historical 4 quantification of those water rights that carries 5 forward to the future uses allows for credit for 6 that unlawful use, that that injury will continue in 7 the future. 8 9 16:27 10 Q. There was discussion about Mr. Tyner's call analysis that you used and then synthesized back in time, some questions to the effect of the 11 point, as I recall, that Mr. Tyner didn't create all 12 of his data, and certainly not that from the 1950s. 13 Do you recall that discussion? 14 A. Yes, I do. 15 Q. And yet that you found his analysis 16 reliable, notwithstanding that he did not create all 17 the data that he used in his analysis. 18 recall that discussion? Do you 19 A. I do. 16:28 20 Q. And do you still have the same opinion 21 22 about the reliability and use of his call analysis? A. Yes. It was based upon actual diversion 23 records which were developed by the Division of 24 Water Resources for each of the ditches, and that is 25 information that we commonly rely on. Mile High Court Reporting and Video, Inc. 303-202-0210 contact@milehighreporting.com Concerning the Application of: Busk-Ivanhoe, Inc. July 26, 2013 - Volume IV 941 1 Q. For example, I would imagine that the 2 Water Commissioners who collected data in the 1950s 3 no longer work for that organization; yet you use 4 their data, don't you? 5 A. Yes, I think it's just as analogous as 6 using the Busk-Ivanhoe diversion records from the 7 1920s and '30s. 8 here that were around at that time, but we have a 9 record in that case in those early years from the 16:29 10 I don't think there's any of us U.S. Geological Survey that we rely on and that is 11 commonly the type of data that we use in these types 12 of analyses. 13 Q. There was limited discussion about what 14 would be logical to do within creating a trans- 15 mountain diversion system without storage. 16 recall that discussion? 17 18 19 A. Do you I think I know the testimony you're referring to, yes. Q. Do you agree with Mr. Bethel's 16:29 20 explanation of the history of the Busk-Ivanhoe 21 system to include the initial existence of the 22 tunnel as a railway tunnel and then later the use of 23 that tunnel as a toll road and thereafter the use of 24 that existing tunnel to deliver water? 25 any reason to doubt that? Do you have Mile High Court Reporting and Video, Inc. 303-202-0210 contact@milehighreporting.com Concerning the Application of: Busk-Ivanhoe, Inc. July 26, 2013 - Volume IV 942 1 2 3 4 A. No. I recall historical references to that effect. Q. So that the tunnel existed before the Busk-Ivanhoe project was created? 5 A. Yes, it did. 6 Q. And the tunnel was a convenient 7 mechanism that existed at that time through which to 8 bring water? 9 A. Very much so, yes. 16:30 10 Q. You had some discussion with Mr. Hamre 11 about the Arkansas River hydrograph and when it may 12 peak in relation to crop demands. 13 that discussion? 14 A. Yes, I do. 15 Q. Isn't it true that the Arkansas River Do you recall 16 Basin has been perpetually on call since 17 approximately 2002? 18 19 16:31 20 21 A. Yes, actually, since a year or two before that, but yes. Q. And has the Colorado River within this state been perpetually on call for that duration? 22 A. Not perpetually, no. 23 Q. Is it perpetually on call on a regular 24 25 basis for an entire year? A. Only in a very dry year is there a call Mile High Court Reporting and Video, Inc. 303-202-0210 contact@milehighreporting.com Concerning the Application of: Busk-Ivanhoe, Inc. July 26, 2013 - Volume IV 943 1 on the Colorado for virtually the entire year, a 2 year such as 1977 or 2012, for example. Q. 3 From your experience in working in the 4 Colorado River Basin, in an average-water-year 5 condition on the Colorado River, would you expect 6 there to be months of free-river condition? 7 A. Yes, certainly, in an average year. 8 Q. The Cameo irrigation operation ceases 9 16:32 10 approximately November the 1st each year, doesn't it? 11 A. Approximately, yes. 12 Q. And thereafter does, in an average year, 13 does the Colorado River typically go into a free- 14 river condition? 15 A. Typically at Cameo there would not be a 16 call in the winter, or there would be a free river. 17 Yes, I think that's accurate. 18 19 16:32 20 Q. And then the Cameo operations for irrigation would commence again maybe in April of the next year? 21 A. Yes, I believe that's accurate. 22 Q. And at some point during even an average 23 24 25 year, Cameo may place a call, correct? A. Yes. Typically, you know, I think, on average, it would be in the August time frame. This Mile High Court Reporting and Video, Inc. 303-202-0210 contact@milehighreporting.com Concerning the Application of: Busk-Ivanhoe, Inc. July 26, 2013 - Volume IV 944 1 year it was earlier, in July, for example, because 2 it's a dry year. 3 Q. Now, with that background, I would like 4 to compare a hypothetical -- let's say 1925 5 priority irrigation water right adjudicated from 6 Arkansas River native basin sources -- with the 7 Busk-Ivanhoe, let's say, 1925 priority water rights 8 from the Colorado River Basin. 9 16:33 10 In terms of their expected in-priority diversions, would you expect there to be a 11 difference in the duration of in-priority diversions 12 by two such water rights? 13 MR. KRASSA: Your Honor, I think this is 14 outside the scope of redirect. 15 anything on the cross that was related to this type 16 of analysis between two basin call scenarios. 17 MR. HALLFORD: I've not heard Your Honor, Mr. Hamre was 18 comparing the demand of an Arkansas River irrigation 19 system, the Rocky Ford High Line, based upon assumed 16:34 20 Arkansas River Basin hydrology, and I think it's 21 fair to point out, in thinking about the need for 22 storage to meet that, that we're not talking about 23 an Arkansas River supply for that demand. 24 25 We're talking about a Colorado River Basin supply for that demand, which has a different Mile High Court Reporting and Video, Inc. 303-202-0210 contact@milehighreporting.com Concerning the Application of: Busk-Ivanhoe, Inc. July 26, 2013 - Volume IV 945 1 hydrology, as this witness has indicated. THE COURT: 2 Q. 3 4 The objection is overruled. (By Mr. Hallford) Can you respond to the question? A. 5 Yes. A 1925 water right would very 6 rarely be in priority in the irrigation season in 7 the Arkansas River Basin. 8 in priority in the Colorado River Basin until the 9 late summer months of August, September, for 16:35 10 It would consistently be example, typically. Q. 11 So the Colorado River Basin right such 12 as the Busk-Ivanhoe water right could deliver water 13 to direct irrigation on an average basis maybe in 14 May, June, July? 15 A. 16 It could deliver water for the majority of the irrigation season, yes. MR. HAMRE: 17 Objection, Your Honor. 18 That's not what the evidence is. 19 that the Busk-Ivanhoe runs out of water. 16:35 20 water left. The evidence is There's no There's no snow melt left -- or pardon 21 me. 22 left to melt and there's no water left to import. 23 That's what I was trying to say. 24 evidence. 25 Let's try this a third time. THE COURT: There's no snow That's the I understand your objection, Mile High Court Reporting and Video, Inc. 303-202-0210 contact@milehighreporting.com Concerning the Application of: Busk-Ivanhoe, Inc. July 26, 2013 - Volume IV 946 1 Mr. Hamre, and I'll assess the evidence and give it 2 the weight I think this deserves. 3 Q. (By Mr. Hallford) Finally, Mr. Sayler, 4 there was discussion about how you attributed 5 Busk-Ivanhoe water to Rocky Ford High Line water 6 demands in your excess analysis. 7 discussion? Do you recall that 8 A. Yes, I do. 9 Q. Isn't it true that you assumed that, 16:36 10 when there was a Rocky Ford High Line diversion 11 exceeding the native basin water rights, but there 12 was a need for water indicated in the system, that 13 you attributed the beneficial use to the 14 Busk-Ivanhoe water right? 15 A. We attributed the beneficial use 16 inherently first to the in-basin Rocky Ford High 17 Line Arkansas River water rights and, to the extent 18 there was excess, we said the excess should come out 19 of the Busk-Ivanhoe water to the extent Busk-Ivanhoe 16:37 20 was being diverted, rather than come out of the 21 in-basin supply, since the Busk-Ivanhoe was a 22 supplemental supply. 23 Q. But if there was unmet need under that 24 system from the native basin water rights, you 25 attributed beneficial use to the Busk-Ivanhoe water Mile High Court Reporting and Video, Inc. 303-202-0210 contact@milehighreporting.com Concerning the Application of: Busk-Ivanhoe, Inc. July 26, 2013 - Volume IV 947 1 rights, didn't you? 2 A. Sure, to the extent we had records that 3 the water was delivered on an annual basis to the 4 Rocky Ford High Line, then we attributed that to 5 that beneficial use under the Rocky Ford High Line, 6 yes. 7 Q. And isn't that assumption favorable to 8 the quantification of a supplemental direct-flow 9 right, that it have beneficial use associated with 16:38 10 it? 11 A. 12 question. 13 beneficially used under the Busk-Ivanhoe water 14 right, yes. 15 Q. I'm not sure that I understand the I mean, we showed water that was Well, I'm getting to the point that 16 Mr. Hamre asked you about -- or suggested that you 17 attributed Rocky Ford head-gate diversions to the 18 Busk-Ivanhoe water right at a time when they may 19 have well been being stored, for all you know. 16:38 20 Do you recall that discussion? 21 A. Okay, yes, I do. 22 Q. Isn't it more favorable to the 23 Busk-Ivanhoe water-right analysis for that right to 24 first attribute it to unmet-beneficial-use need in 25 the Rocky Ford system rather than assuming it was Mile High Court Reporting and Video, Inc. 303-202-0210 contact@milehighreporting.com Concerning the Application of: Busk-Ivanhoe, Inc. July 26, 2013 - Volume IV 948 1 2 stored? A. Yes, I believe that it is, although I 3 would also say, I think, that the way that we have 4 analyzed it is that, if there was direct water being 5 diverted and if there was an irrigation demand, then 6 we have assumed it was used directly rather than 7 stored. MR. HALLFORD: 8 And I have no questions 9 about the Burlington case and I have no more 16:39 10 questions, Your Honor, and would ask whether 11 Mr. Sayler can be released. 12 THE COURT: 13 think I've got a couple questions. 16 Just a second. I EXAMINATION 14 15 Okay. BY THE COURT: Q. Mr. Sayler, I think it was WSO Exhibit 17 85 which was the graph showing the averages and 18 spikes over the years? 19 A. Yes. 16:39 20 Q. Do you recall? 21 A. Yes, Your Honor. 22 Q. So if I understand that graph correctly, 23 in 1983, 1984 where we have a huge spike -- do you 24 understand where I'm -- 25 A. Yes, yes, I do. I'm looking at it right Mile High Court Reporting and Video, Inc. 303-202-0210 contact@milehighreporting.com Concerning the Application of: Busk-Ivanhoe, Inc. July 26, 2013 - Volume IV 949 1 now. Q. 2 Oh, okay, and then looking at the free- 3 river analysis that you did for that year, it 4 doesn't show that there's any free river during 5 those years even though there's all this extra 6 water. 7 How is that consistent? A. Keep in mind, Your Honor, that the 8 free-river analysis we did was on the Arkansas River 9 side, and I'd need to look at that exhibit again to 16:40 10 confirm if there were free-river days, but this is 11 an indication of the water available in 1983 and 12 1984 as well as all of these other years on the 13 Colorado River side. 14 15 Q. Well, maybe I said this wrong, that there were no free-river days in '83 and '84. 16 A. There were no free-river days. 17 Q. When you have all this extra water. 18 A. And I think that would be consistent. 19 16:41 20 21 22 In other words, there were no free-river days on the Arkansas River so they brought over water from the Colorado River. Q. Okay, and, again, maybe I'm 23 misunderstanding, but if there's zero on the river, 24 free-river days, in that month, if there's zeroes in 25 that month, that means there was no free-river days? Mile High Court Reporting and Video, Inc. 303-202-0210 contact@milehighreporting.com Concerning the Application of: Busk-Ivanhoe, Inc. July 26, 2013 - Volume IV 950 A. 1 On the Arkansas River. This is for 2 diversions from the Colorado River here, so there 3 could have been days on the Colorado River where 4 water could be diverted, and I think that's one of 5 the reasons why the transmountain supply was sought, 6 is because there are free-river days on the Colorado 7 River when there are not free-river days on the 8 Arkansas River, and what we analyzed was Arkansas 9 River free-river days. Q. 16:42 10 You were asked some questions about -- 11 I'm going to get the number wrong -- the 2621 12 decree. 13 A. 2621, yes. 14 Q. Were there were some interlineations and 15 changes made from -- I think the word was from 16 direct irrigation to direct flow. 17 that? Do you recall 18 A. Yes, Your Honor. 19 Q. Wouldn't that be consistent with the 16:42 20 Court's interpretation in Garfield County that there 21 was no irrigation going on on the western slope with 22 that water? 23 24 25 A. I'm not sure I'm familiar with the case that you're referring to, Your Honor. Q. Well, the decree was changed. The Mile High Court Reporting and Video, Inc. 303-202-0210 contact@milehighreporting.com Concerning the Application of: Busk-Ivanhoe, Inc. July 26, 2013 - Volume IV 951 1 2 3 4 wording was changed to direct flow, wasn't it? A. That's correct, from direct irrigation. I believe that's right. Q. Wouldn't that be consistent with the 5 Garfield court, the Court that entered that 6 decree -- it was Garfield, wasn't it? 7 A. That's correct. 8 Q. Understanding that there was no 9 16:43 10 11 12 irrigation going on in that -- on that side of the mountain, on the west side, that the water was going to be used on the east side for irrigation? A. I guess I don't interpret it necessarily 13 as being that understanding. 14 distinguish a difference between direct irrigation 15 and direct flow. 16 Q. 17 Okay. And then in your Exhibit 10-A -- it's the storage analysis. 18 A. Yes, Your Honor. 19 Q. The excess water. 16:43 20 21 I don't really Did you confirm any of the totals -- for example, in 1968, it indicates there was excess water, 1230 acre feet, correct? 22 A. That's correct. 23 Q. And in the minutes that were submitted 24 in A-65, it talks about the superintendent's 25 recording of 3,300-and-something acre feet in Mile High Court Reporting and Video, Inc. 303-202-0210 contact@milehighreporting.com Concerning the Application of: Busk-Ivanhoe, Inc. July 26, 2013 - Volume IV 952 1 storage. 2 A. That's correct. 3 Q. So how are these consistent then? Did 4 you make any comparison between minutes of the Rocky 5 Ford High Line Canal when they did their yearly 6 report about how much was in storage compared to 7 your numbers in this report? 8 9 16:44 10 A. What we're showing in Column 4 of this table -- and the 1230 acre feet that you referred to in 1968 would be the amount of excess water above 11 and beyond what was sent down the river to the Rocky 12 Ford High Line for that particular year. 13 this column up, because we don't know -- we don't 14 have records of the storage reservoir in terms of 15 how much they were releasing or how much they were 16 accumulating -- they could have had 3,000 acre feet 17 in storage. If you sum 18 Some of that could have been this 1200 19 acre feet and some it could have been water stored 16:45 20 21 from previous years that we show in Column 4. Q. Okay. And then the 20 percent fee that 22 was charged for storage, that water was -- that 20 23 percent fee was applied on the eastern slope, 24 correct? 25 A. That's correct. Mile High Court Reporting and Video, Inc. 303-202-0210 contact@milehighreporting.com Concerning the Application of: Busk-Ivanhoe, Inc. July 26, 2013 - Volume IV 953 Q. 1 And that fee, or what was done with that 2 water by Busk-Ivanhoe to -- let me see. 3 rephrase that. 4 hands, in terms of being a fee, whatever was done 5 with it by CF & I was totally up to CF & I at that 6 point, wasn't it? 7 8 9 16:46 10 11 12 Let me After it left the Busk-Ivanhoe A. I suppose that's correct, yes, Your Q. And Busk-Ivanhoe did not have any Honor. control over whether it was applied to agricultural or industrial or something else? A. I think that's correct. 13 THE COURT: 14 Any questions based upon the Court's, 15 All right. Mr. Hallford? 16 MR. HALLFORD: 17 THE COURT: 18 MR. HALLFORD: 19 THE COURT: 16:46 20 MS. RYAN: No, Your Honor. Really? Maybe I'm worn down. Ms. Ryan? No questions, Your Honor. 21 THE COURT: Mr. Krassa? 22 MR. KRASSA: 23 THE COURT: Mr. Hamre? 24 MR. HAMRE: No questions, Your Honor. 25 THE COURT: Wow. No questions, Your Honor. Mile High Court Reporting and Video, Inc. 303-202-0210 contact@milehighreporting.com Concerning the Application of: Busk-Ivanhoe, Inc. July 26, 2013 - Volume IV 954 Okay, thank you, sir. 1 2 excused. 3 THE WITNESS: 4 THE COURT: 5 MR. HALLFORD: 6 Thank you. Mr. Hallford? Your Honor, at this point, the West Slope Opposers rest their case. 7 THE COURT: 8 Mr. Krassa? 9 MR. KRASSA: 16:47 10 You may be Okay, thank you. Yes, Your Honor, we have one witness, Mr. Henrichs. 11 THE COURT: 12 MR. KRASSA: Shall we start with him? How long will it take? I would guess that his 13 direct might take half an hour, possibly 40 minutes 14 at the most. THE COURT: 15 16 Okay, we'll come back on Tuesday then. 17 MR. KRASSA: All right. 18 THE COURT: Mr. Dingess? 19 MR. DINGESS: 16:47 20 Just wondering about, since the Court's indicated we're coming back, 21 wondering about just some procedural matters. 22 can take those up off the record if the Court would 23 like. 24 25 THE COURT: We How much time do you think you'll need for your rebuttal case? Mile High Court Reporting and Video, Inc. 303-202-0210 contact@milehighreporting.com Concerning the Application of: Busk-Ivanhoe, Inc. July 26, 2013 - Volume IV 955 1 MR. DINGESS: 2 THE COURT: Four hours? 3 MR. HAMRE: I don't think it would be 4 Maybe about four hours. more than that. 5 THE COURT: 6 plan on Tuesday to finish up then? 7 other procedural matters? MR. HAMRE: 8 9 Okay, that's fine, so we'll All right. Any Is 8:30 the appointed hour again, Your Honor? THE COURT: 16:48 10 Yes. MR. DINGESS: 11 12 Okay. Can we leave our few boxes of exhibits here with the Court? THE COURT: 13 Certainly, no problem at 14 all. When we get in our new building, if you were 15 here next year, we'd actually have a closet for you 16 in the back of the courtroom for each party to put 17 their exhibits in. MR. DINGESS: 18 19 sir? THE COURT: 16:48 20 21 22 23 Where is the new building, The corner of Fourth and Elizabeth. MR. HALLFORD: Your Honor, do you want us to just leave these handwritten exhibits here? 24 THE COURT: Yes, please. 25 MR. HALLFORD: Okay. We did take Mile High Court Reporting and Video, Inc. 303-202-0210 contact@milehighreporting.com Concerning the Application of: Busk-Ivanhoe, Inc. July 26, 2013 - Volume IV 956 1 photographs. 2 THE COURT: Great, so anything else? 3 Already, Counsel, have a good weekend and, for those 4 of you who are driving home, be careful, and we'll 5 see you back here on Tuesday at 8:30. 6 in recess. The Court is 7 *********************** 8 (Proceedings concluded at 4:48 p.m.) 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Mile High Court Reporting and Video, Inc. 303-202-0210 contact@milehighreporting.com Concerning the Application of: v. Busk?Ivanhoe, Inc. July 26, 2013 Volume IV - gum-magMary Susan Parker, Registered 4 Professional Reporter, Registered Merit Reporter, 5 and Certified Realtime Reporter, certify that the 6 above proceedings were had; then reduced to 7 typewritten form, by means of computer-aided 8 transcription. 9 I further certify that I am not related 10 to any party herein or their counsel and have no 11 interest in the result of this matter. 12 IN WITNESS WHEREOF, I hereunto set my 13 hand. My commission expires: August 9, 2018. 14 1 5 {Mm . (Nu/1 Mary Susa Parker 16 Notary No. 19874154446 Registered Professional Reporter 17 Registered Merit Reporter Certified Realtime Reporter 3?202?0210 $225932" 0 Mile High Court Reporting and Video, Inc. 3 contact@milehighreporting.com