Case No. 90SA514 Opening Brief for the Appellant

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an eleven mile reach of the Cache La Poudre River ( "Poudre River "). Appendix B. The application characterized the "structures" for which water rights were sought to be confirmed as "The Fort Collins -- Poudre River Recreation Corridor" and the "Fort Collins -- Poudre River Dilution Corridor," stated that "no points of diversion" from the Poudre River were "proposed," and specifically requested that the court confirm the rights as "in- stream rights" and "in- stream flows." Appendix B, p.l, 2, 4. Approximately a year and a half later, on or about May 27, 1988, Fort Collins filed an amended application ( "1988 Application "). Appendix C. The amended application eliminated all references to "in- stream rights" and claimed that "diversions" would take place at the "Power Plant Diversion Dam" and the 'Nature Center Diversion Dam." Appendix C, p.l, 2, 5. Fort Collins continued to claim the same date of appropriation it had claimed for the Poudre River Recreation Corridor in the original application. Appendix C, p.2. Fort Collins based its claim to a February 18, 1986, date of appropriation based on the adoption on that date of the Poudre River Trust Land Use Policy Plan ( "Land Use Plan "). Rec.Vo1.III, p.67,1.14-23. The City of Thornton ( "Thornton ") filed timely statements of opposition to both the original and the amended applications. This case was tried before Judge Connie L. Peterson, Alternate Water Judge for Water Division 1, on August 13 and 14, 1990. At the conclusion of trial, Judge Peterson awarded Fort Collins a water right for a 55 c.f.s. rate of flow at the Nature Center Diversion Dam, with a date of appropriation of February 18, 1986, based upon Fort Collins' adoption of the Land Use Plan and other acts submitted into evidence. Supp.Rec., p.5,1.6-11 and 22 -24; p.11, 1.23 -25; p.12, 1.1 -8. The court did not award Fort Collins a water right for the Power Plant Diversion Dam, 2