Reply Brief and Response Brief of Appleant, City of Thornton

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i r j V I. THORNTON'S REPLY BRIEF On February 18, 1986, the City of Fort Collins adopted, pursuant to Resolution 86 -32, Chapter Two of the Poudre River Trust Land Use Policy Plan ( "Land Use Plan "). Neither the Land Use Plan nor the approving resolution make any reference to water rights, to an appropriation of water, to the Nature Center Diversion Dam or to the Power Plant Diversion Dam. The Nature Center Diversion Dam is not even located within the study area of the Land Use Plan.' Yet, the water court awarded Fort Collins a February 18, 1986 date of appropriation for a water right at the Nature Center Diversion Dam based upon Fort Collins' adoption of this plan as well as a reconnaissance field trip, signs posted in December of 1986 and notices published in December of 1986. None of the acts, documents or notices establish the concurrence, on February 18, 1986, of a fixed intent by Fort Collins to appropriate this water right, or an overt act providing notice of Fort Collins' alleged intent. Moreover, as Fort Collins acknowledges that it maintains no control over the water in the reach of the river downstream from the Nature Center Diversion Dam where the claimed beneficial uses are supposed to take place, Fort Collins failed to demonstrate that the claimed water can and will be beneficially used. The water court erred in awarding Fort Collins a water right at the Nature Center Diversion Dam and in awarding Fort Collins a February 18, 1986 date of appropriation. The water court also erred in relating the filing date of Fort Collins' 1988 Application back to the filing date of its 1986 Application expressly requesting an unlawful appropriation of in- stream flows. No reasonably prudent person would have known from Fort Collins' unambiguous 'The Nature Center Diversion Dam is located three miles downstream from the terminus of the study area for the Land Use Plan. 1