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13. In accordance with the requirement that the overt acts <br />constituting notice must relate to the type of use that is <br />anticipated, under the type of water right claimed in the <br />Application, Fort Collins completed the first step toward <br />appropriating the Nature Center Dam conditional water right on <br />December 31, 1986 and Fort Collins completed the first step <br />toward appropriating the Power Plant Dam conditional water right <br />on December 31, 1986. <br />14. In accordance with the reauirements that unanmronriated <br />water be available for appropriation, it is uncontradicted that, <br />at certain times of the year, unappropriated water will be <br />available for these appropriations of 30 cfs, even though there <br />is a substantial fluctuation in the flow of the Cache La Poudre <br />River in the area of the appropriations. <br />15. In accordance with the requirement of C.R.S. § 37 -92- <br />103(4) that the amount of water claimed is reasonable to <br />accomplish the appropriation, water in the amount of 30 cfs is a <br />reasonable amount for these appropriations to maintain a fishery <br />in the river at these locations. Although some evidence <br />indicates that 14 cfs is the minimum amount required for fish to <br />survive, that amount would be very marginal and would not be a <br />reasonable amount of water to place to beneficial use for the <br />uses that are intended. <br />16. Fort Collins has proceeded with reasonable diligence <br />since the appropriation dates. Fort Collins has been and <br />continues to be engaged in the development of wildlife habitat, <br />recreational opportunities, and a fishery in the Poudre River <br />Corridor, and the Power Plant Dam and Nature Center Dam <br />conditional water rights are integral components of that effort. <br />The project has been one of intense focus by the City of Fort <br />Collins and other groups. The evidence shows that Fort Collins' <br />diligence has been more than sufficient. <br />17. The Court applied the definition stated at C.R.S. § 37- <br />92- 103(7) to analyze whether or not the appropriation at the Fort <br />Collins Power Plant Dam Constitutes a "diversion." The Fort <br />Collins Power Plant Dam is a concrete dam across the Poudre River <br />which includes a boat chute and a fish ladder. The boat chute <br />and f ish ladder are properly designed and constructed to <br />concentrate the flow of water to serve their intended purposes. <br />The chute and ladder qualify as structures or devices which <br />control water in its natural course or location. The Power Plant <br />Dam does constitute a diversion contemplated by statute. See <br />C.R.S. § 37 -92 -103 (7) . <br />1\D\PP..JL't L R\DEC=Z-FIX 5 <br />