Laserfiche WebLink
attached hereto as Appendix I. The dam is the result of the reconstruction in 1987 of Fort Collins' <br />original Power Plant Dam located at that site. Rec.Vol.III, p. 117,1.2 -12; p. 124,1.3 -6. Its purpose, <br />and that of the original dam, is to impound water for erosion control and to facilitate diversions <br />through an upstream ditch (Coy Ditch). Rec.Vol.III, p. 129, 1. 4 -6; p. 137,1. 13 -21; p. 236, 1. 20 -22; <br />p. 238, 1. 15 -17. <br />On the date the Land Use Plan was adopted, which is also the claimed date of <br />appropriation, Fort Collins was considering abandoning the dam altogether due to its deteriorating <br />condition. Ex. A -44, attached hereto as Appendix F; Rec.Vol.III, p. 117, 1. 7 -12; p. 125,1.24 -25; p. <br />126, 1. 1 -2, p. 127, 1. 21 -23. In November of 1986, however, Fort Collins decided to repair the dam <br />due to its "eminent failure ". Ex. A -45, attached hereto as Appendix G. It was not until December <br />of 1986 that Fort Collins decided to include a boat chute and a fish ladder in the reconstructed dam. <br />Rec.Vo1.III, p. 128, 1. 4 -21. <br />Fort Collins asserts that the water court erred in denying a water right at the Power <br />Plant Diversion Dam, claiming that the water court's determination was based upon the finding that <br />the boat chute and fish ladder only controlled water at certain low flow conditions. Fort Collins <br />asserts the trial court erred because it is not necessary for the dam to control the entire flow of the <br />stream under all conditions and because the court relied upon stricken evidence to support its <br />holding. Fort Collins Brief, p. 21. <br />Based upon C.R.S. §§ 37 -92- 103(7) and 305(9)(b), the water court found: <br />SC.R.S. § 37 -92- 103(7) states: "`Diversion' or `divert' means removing water from its natural course or location, or <br />controlling water in its natural course or location, by means of a ditch, canal, flume, reservoir, bypass, pipeline, conduit, well, <br />pump, or other structure or device." C.R.S. § 37- 92- 305(9)(b) states: "No claim for a water right may be recognized or a <br />decree therefor granted except to the extent that the waters have been diverted stored or otherwise captured possessed and <br />controlled and have been applied to beneficial use, but nothing in this section shall affect appropriations by the state of <br />Colorado for minimum stream flows as described in § 37- 92- 103(4)." [Emphasis Added] <br />15 <br />