Case No. 90SA514 Opening Brief for the Appellant

Home Browse Search

District supra, 276 P.2d at 999. "The priority of a water right may not be dated back to the date of survey or filing of plat of a diversion proposal which has been abandoned in favor of another and very different plan." Id. at 1001. A water right to divert at the Nature Center Diversion Dam is the exact opposite of what Fort Collins sought and provided notice of in 1986. The 1986 Application gives no indication of an intent to divert water anywhere along the Poudre. Fort Collins went so far as to put the world on notice that it was not seeking to appropriate water by diversion. Fort Collins may not rely upon this application to establish an overt act providing others of notice of its intent to divert at the Nature Center Diversion Dam. Holbrook Irrigation District v. Fort Lyon Canal Company 84 Colo. 174, 269 P. 574, 580 -1 (1928); See Fort Lyon Canal Compao v. Amily Mutual Irrigation Company 688 P.2d 1110, 1114 (Colo. 1984). Moreover, Fort Collins' attempt to appropriate in- stream rights in 1986 was unlawful. Fort Collins should not be allowed to benefit from filing this unlawful application to obtain a date of appropriation for a water right by diversion at the Nature Center Diversion Dam. 16 Originally two classes of appropriations were recognized in Colorado, one for ditches diverting water for direct use, and one for the storage of water, to be used subsequently. In City and County of Denver v. Northern Colorado Water Conservation District supra, 276 P.2d at 999, the Supreme Court stated that a direct use decree must be sought to divert water directly, and a storage decree must be sought to store water for later use. In 1973, the Colorado General Assembly passed Senate Bill 97 providing for a third class of appropriation, an instream flow. 17 see footnote 3 on page 7. Only the state of Colorado, through the Colorado Water Conservation Board, has the authority in Colorado to make an in- stream appropriation of water: "[T]he Colorado water conservation board is hereby vested with the exclusive authority, on behalf of the people of the state of Colorado, to appropriate ... such waters of natural streams and lakes as the board determines may be required for minimum steam flows or for natural surface water levels or volumes for natural lakes to preserve the natural environment to a reasonable degree.... no other person or entity shall be granted a decree adjudicating a right to water or interests in water for instream flows in a str channel between specific points or for natural surface water levels or volumes of natural lakes, for any purpose, whatsoever. [Emphasis added] C.R.S. § 37 -92- 102(3); Colorado River Water Conservancy District v. Colorado Water Conservation Board, 197 Colo. 469, 594 P.2d 570 (1979). 23