Laserfiche WebLink
rightfully treated the claim as a distinct type of water right, distinguishable from the type <br />of water right characterized by the delivery of water from the stream to an off - stream <br />location where the water is applied to beneficial use. See, Decree, 9 11 and 29, Rec. Vol. <br />1, p. 282 and p. 285, App. 1. But the water court concluded that the claim was not legally <br />distinguishable from a minimum stream flow claim because there was no diversion, thus <br />Fort Collins could not obtain a conditional water right for the Power Plant Diversion Dam <br />because only the Colorado Water Conservation Board has the authority to obtain a decree <br />for a minimum stream flow appropriation, which is a water right without a diversion. See <br />C.R.S. §§ 37 -92- 102(3) and 37- 92- 305(9)(a), App. 2. <br />In its Response Brief, the City of Thornton, Acting by and through its Utilities Board <br />( "Thornton "), states that Fort Collins was denied its claim because Fort Collins' evidence <br />was not sufficient to show that 55 c.f.s. would be controlled for the claimed beneficial uses. <br />In reply, Fort Collins asserts that the water court erroneously applied the definition of <br />"diversion" at C.R.S. § 37 -92- 103(7) to place the burden on Fort Collins of showing that <br />the Power Plant Diversion Dam can and will control the entire flow of the Cache La Poudre <br />River, when the definition of diversion only imposes the burden of showing that Fort <br />Collins can and will control water for beneficial uses and that the quantity of water claimed <br />is reasonable and appropriate for the claimed purposes. <br />Thorn \RepBrf.& 3 <br />