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

act providing notice of such intent. The trial court, therefore, erred in awarding Fort Collins a
date of appropriation of February 18, 1986 for a water right at the Nature Center Diversion Dam.
1. The water court erred in holding that Fort Collins' adoption of the Poudre River
Trust Land Use Policy Plan and other acts shown by the evidence manifested a fixed intent
by Fort Collins to divert 55 c.f.s. at the Nature Center Diversion Dam as of the date of
adoption of that plan, February 18, 1986.
In order to appropriate a water right, the purported appropriator must "have a
specific plan and intent to divert, store, or otherwise capture, possess, and control a specific
quantity of water for specific beneficial uses." C.R.S. § 37- 92- 103(3)(a)(II). This specific plan and
intent is further defined as "a fined purpose to pursue diligently a certain course of action to take
and beneficially use water from a particular source." City & County of Denver v. Colorado River
Water Conservancy District 696 P.2d 730, 745 (Colo. 1985) ( " Denver '); Bar 70 Enterprises, Inc.
v. Tosco Corporation 703 P.2d 1297, 1307 (Colo. 1985) ( " Bar 70 Enterprises No such plan or
intent existed on February 18, 1986.
a. Neither the Land Use Plan nor the approving resolution satisfy the
requirement of establishing that Fort Collins had formed the intent to appropriate
a water right at the Nature Center Diversion Dam as of February 18 1986
If it is to serve as an expression of Fort Collins' intent to appropriate a water right
for the Nature Center Diversion Dam, the Land Use Plan must contain the City's specific plan and
intent to divert at the dam 55 c.f.s. for recreational, fishing and wildlife uses. Instead, the Land
Use Plan merely sets forth Fort Collins' desire to "preserve and enhance the natural environment,
to the extent practical along the Poudre River" within the Downtown River Corridor. Ex.A -7,
p.8, see also, p.14, 18, 20, 25, 51. The Land Use Plan directs the City to "evaluate the possibility
4 The "Downtown River Corridor" extends along the Poudre River as it flows through Fort Collins from Lee Martinez
Park to Lemay Avenue. Ex.A -7, p.11-A. The Nature Center Diversion Dam is located approximately three river miles
downstream of Lemay Avenue and therefore lies outside of the Downtown River Corridor. Ex.A -73.
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