Case No. 90SA514 Reply Brief of Cross-Appellant, City of Fort Collins

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THE COURT: What about the Power Plant Diversion Dam, what difference does that make? A: (By Smith) : I think not having that structure there or just having the structure there without those features, you would lose the beneficial uses of the fish ladder that's there, of the boating chute that's there. Smith, Rec. Vol. 3, p. 235, 1. 7 - 12. THE COURT: Does it [Power Plant Diversion Dam] control any flow other than to put it through those two points? A: (By Smith) : Other than what it normally - -let me try to back up. Without the chute and the fish ladder, the diversion dam would do what diversion dams do; divert water to the Coy Ditch there. It does that, too. It maintains that use plus it diverts water into the chute and the fish ladder. That's what it does. THE COURT: The diversion for the ditch doesn't have anything to do with this application. A: (By Smith): No, that was just a feature that was put back. Smith, Rec. Vol. 3, p. 236, 1. 16 - p. 237, 1. 3. Fort Collins' evidence of control and diversion of water by means of the boat chute and fish ladder is uncontroverted, as demonstrated by no record citations on this issue in Thornton's response brief. Thornton complains that Fort Collins did not demonstrate that the boat chute and fish ladder controlled 55 c.f.s. of water. Fort Collins, in applying for water court confirmation of a conditional appropriation, is required to quantify the specified portion of the waters of the state which it intends to apply to a beneficial use. See C.R.S. § 37 -92- 103 (3) (a) (Definition of "appropriation "), App. 2. The quantity applied to a beneficial use must meet the standard that "use of that amount of water is reasonable and appropriate under reasonably efficient practices to accomplish without waste the purpose for which the appropriation is lawfully made." C.R.S. § 37 -92- 103(4) (Definition of Thorn \RepBrf.& 8