Reply Brief and Response Brief of Appleant, City of Thornton

Home Browse Search

I T The water court erred in ruling that the 1988 Application may relate back to the filing date of Fort Collins' unlawful 1986 Application, and this Court should reverse the court's holding. C. The Water Court Erred In Confirming A Water Right For The Nature Center Diversion Dam Since Fort Collins Failed To Demonstrate That The Water Can And Will Be BenehciallyUsed. Pursuant to a stipulation for settlement of this case between the Colorado Water Conservation Board and Fort Collins, the decree entered by the court contains the following provision: Fort Collins does not claim a right to assert dominion and control over the water diverted once it leaves the point of diversion described in paragraph 49(c) hereof [the Nature Center Diversion Dam], based upon the provisions of this decree. Decree, 5 19, Appendix B; Rec.Vol.I, CWCB Stipulation. Fort Collins claims that it need not demonstrate control over the water it seeks to appropriate after the water leaves the Nature Center Diversion Dam in order to be entitled to confirmation of a water right. However, Fort Collins testified that the purpose of the Nature Center Diversion Dam is to provide in- stream beneficial uses downstream of the dam site. Rec.Vol.III, p. 157, 1. 9 -17; p. 239, 1. 15 -22; p. 240, 1. 1-2. With no right require that water remain in the reach of the river where the claimed uses would take place, Fort Collins has no control over whether or not those uses can and will occur, and therefore cannot demonstrate that the water can and will be beneficially used. In order to establish an appropriation an applicant must show that the water sought will be beneficially used. C.R.S. § 37- 92- 305(9)(b) states that no claim for a conditional water right may be recognized: or a decree therefor granted except to the extent that the waters can be and will be diverted, stored, or otherwise captured, possessed, and controlled and will be 13