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III. THE DIVERSIONS WHICH WILL OCCUR AT THE FISH LADDER AND THE <br />BOAT CHUTE ON THE POWER PLANT DIVERSION DAM WILL ENABLE <br />FORT COLLINS TO BENEFICIALLY USE THE DIVERTED WATER AT THE <br />POWER PLANT DIVERSION DAM. <br />The argument propounded by Thornton in its Response Brief is that the functions of the <br />Power Plant Diversion Dam as it now exists are no different from the functions of the <br />diversion dam which the current structure replaced -- erosion control and diversions of <br />Poudre River flow via the Coy Ditch. Thornton Response Brief at p. 15. Thornton <br />disregards the fact that the original diversion dam, built around 1935 (Exhibit A -43, Rec. <br />Vol. 3, p. 133, 1. 17 - p. 133, 1. 4), did not have fish ladder and boat chute features. And <br />it is plain that there is no law prohibiting a structure from serving multiple purposes. <br />Without the boat chute and fish ladder, the Power Plant Diversion Dam could only can be <br />utilized to control stream erosion and facilitate diversions at the Coy Ditch. With the boat <br />chute and fish ladder, the Power Plant Diversion Dam can and will be utilized for <br />piscatorial use and recreational boating use, as well as erosion control and facilitation of <br />ditch diversions at the Coy Ditch. <br />Q: (By Bernard) So the City doesn't assert any right to control the water <br />anyplace other than at those two points [Power Plant Diversion Dam and <br />Nature Center Diversion Dam]? <br />A: (By Smith) I believe our application is specific as those two points. I may <br />be wrong, but I think that's what it says. <br />THE COURT: Would the water be able to be placed to beneficial uses <br />without the diversion points? <br />A: (By Smith) Your Honor, I don't - -I really doubt that.... <br />Testimony of Michael D. Smith ( "Smith "), Rec. Vol. 3, p. 234, 1. 10 - 17. <br />Thorn \RepBrf.& 7 <br />