Case No. 90SA514 Opening Brief for the Appellant

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N 2. 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 constituted overt acts sufficient to demonstrate Fort Collins' intent to appropriate a water right, sufficient to qualify as a substantial step in furtherance of appropriating the water right, and sufficient to put other water users on notice of Fort Collins' intent to divert 55 c.fs. at the Nature Center Diversion Dam as of February 18, 1986 ................ 16 a. Adoption of the Land Use Plan does not satisfy the overt act requirement for initiating an appropriation at the Nature Center Diversion Dam .................. 17 b. The Smith field trip does not satisfy the overt act requirement for initiating an appropriation at the Nature Center Diversion Dam ......................:..... 17 C. The signs and notices posted and published on December 31, 1986 do not satisfy the overt act requirement for initiating an appropriation at the Nature Center Diversion Dam as of February 18, 1986...... 20 3. The Nature Center Diversion Dam should be awarded a date of appropriation no earlier than May 27, 1988....... 21 a. The 1986 Application gave notice to the world that Fort Collins was not seeking an appropriation by diversion... 21 b. The signs and notices posted and published on December 31, 1986 establish and provide notice of only an intent to appropriate in- stream flows ................ 24 C. The Water Court Erred In Holding That The Filing Date Of The Amended Application Should Relate Back To The Filing Date Of The Original Application ......................... 24 D. An Appropriation May Not Be Confirmed For A Structure Which Simply Directs The Flow Of The River Within The Stream Channel, Where The Applicant Concedes That It Does Not Physically Control Water, And Concedes That It Has No Right To Water As Against Other Water Users, ii