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otherwise capture, possess and control in its natural course or <br />location the waters subject to the Power Plant _Dam appropriation, <br />and such water will be beneficially used and the project can and <br />will be completed with diligence and within a reasonable time. <br />There is no evidence that the boat chute and ladder do not <br />function as designed. That fish are using or will use the fish <br />ladder is undisputed. That the chute and ladder function as <br />designed means that the water can be controlled such as to be put <br />to recreational, wildlife, fishery and piscatorial uses. <br />22. If the Power Plant Dam appropriation is completed and <br />made absolute and the claimed water is placed to a beneficial <br />use, the water will be controlled in its natural course and <br />placed to a beneficial use in a defined segment of the river <br />channel. The upstream terminus of the segment is located at the <br />Power Plant Diversion Dam. The downstream terminus of the <br />segment is located at the point where the Burlington Northern <br />Railroad Bridge crosses the Poudre River. This control segment <br />is approximately 400 feet long and is located in the NW 1/4, NW <br />1/4, Section 12, T 7 N, R 69 W, 6th P.M., and is depicted on the <br />map attached as Exhibit B. Fort Collins is planning to construct <br />up to two additional control structures within this control <br />segment to put the claimed water to beneficial use. The segment <br />is owned primarily by the City of Fort Collins. <br />23. As a physical matter, these appropriations can and will <br />be completed with diligence. Although there is evidence that <br />some factors detract from the quality of the location as a <br />habitat for the maintenance of a sport fishery -- the river bed <br />is too even, the flow fluctuates too much, and there is a need <br />for added vegetation -- the uses could be accomplished through <br />improvements to the river and to the vegetation along the <br />riverbanks. In particular, the river and the vegetation_ along <br />the riverbanks would be improved at the point of diversion at the <br />Nature Center Dam where the water is placed in the relict river <br />charnel and within the area of the Nature Center. Certainly, <br />within the area of the Nature Center the uses could be <br />accomplished. <br />24. With reference to Thornton's assertion questioning <br />whether boats (or kayaks and inner tubes) currently are allowed <br />to take advantage of the chute, such assertion is irrelevant to <br />the determination of the Power Plant Dam conditional water right_ <br />The City of Fort Collins may prohibit boating use of the chute <br />until such time that it desires to make the Power Plant Dam <br />conditional water right absolute. Notwithstanding the fact that <br />such issue is irrelevant to the determination of the Power Plant <br />Dam conditional water right, the City of Fort Collins does <br />control the use of the boat chute by boats, kayaks, or inner <br />tubes. such control is in accordance with the City's duty to <br />respcnsibly manage such use and prohibit such use when conditions <br />are unsafe. While the boat chute has already been constructed, <br />1 \D \p^7L V4X"R \DEC L-- -T N 7 <br />