Case No. 90SA514 Opening Brief for the Appellant

• Description: Fort Collins and Thorton 86CW371
• State: CO
• Basin: South Platte
• Water Division: 1
• Date: 5/6/1991
• Author: Michael D. White, Bruce D. Bernard, Teri L. Petitt
• Title: Case No. 90SA514 Opening Brief for the Appellant
• Water Supply Pro - Doc Type: Court Documents

Second, the water court erred when it related the filing date of the amended
application back to the filing date of the original application. The "amendments" Fort Collins
sought in its 1988 Application did not narrow and refine the original application. The 1988
Application seeks precisely the opposite of what Fort Collins sought and provided notice of in its
original application and, in fact, represented an application for entirely different water rights than
Fort Collins had originally claimed. Furthermore, the 1986 Application expressly sought to
appropriate "in- stream rights" in total derogation of Colorado law. Application of the doctrine of
relation back to allow the filing of the 1988 Application to relate back to the date of the original
application was improper.
Finally, the water court erred when it confirmed a water right for the Nature Center
Diversion Dam, a structure which merely directs the flow of the Poudre River within the stream
channel to a reach of the river where the claimed beneficial uses will take place, when Fort Collins
acknowledges that it does not physically control the water flows within that reach and that it has
no right . to such flows as against other water users.
B. The Evidence Presented By Fort Collins Does Not Support An Appropriation Date
Of February 18, 1986 For A Water Right At The Nature Center Diversion Dam
Although the appropriation of a water right is not complete until actual diversion
and use, the right may relate back to the time when the first open step was taken which gives
notice of the intent to secure it. City and County of Denver v. Northern Colorado Water
Conservancy District 130 Colo. 375, 276 P.2d 992, 999 (Colo. 1954). This right is termed a
3 The trial court correctly ruled that 'By law, the City of Fort Collins cannot appropriate a minimum stream flow. The
Court does not feel that Senate Bill 212 changed the law in any way. Senate Bill 212 [codified at 37 -92- 102(3)] merely
clarified the existing law but did not add any new law. Therefore, the issue of retroactivity has no relationship to this case."
Supp.Rec., p.9, 1.1 -7.
7