Case No. 90SA514 Thornton v. Fort Collins

Home Browse Search

830 P.2d 915, City of Thornton By and Through Utilities Bd. v. City of Fort Collins, (Colo. 1992) Page 14 concurred. We note that the record indicates that the decision to file the original application was made "sometime in November of 1986, " and that the basis for the decision may have been "some preliminary work in the river on some structures. " Although we have held that formal acts may satisfy the second required function, work on the river may be evidence of course of a substantial step taken to apply waters to beneficial use for purposes of the second required function under the first step test. (FN9) recognized or a decree therefor granted except to the extent that it is established that the waters can be and will be diverted, stored, or otherwise captured, possessed, and controlled and will be beneficially used and that the project can and will be completed with diligence and within a reasonable time. • i Thornton's final argument on appeal is that the Nature Dam is not a diversion within the meaning of the law. Thornton argues that because Fort Collins's claimed diversion at the Nature Dam is nothing more than a minimum stream flow right, the conditional decree cannot issue. Thornton again points to the "in- stream" language employed in the 1986 application and to the fact that this language precipitated objections, negotiations and finally settlement with the CWCB. The settlement resulted in the 1988 amendments. Thornton argues that even with the corrective amendments and even if those amendments were found to relate back Fort Collins was still seeking and therefore was in fact granted an illegal conditional decree for a minimum stream flow rather than for a legal diversion at the Nature Dam. The water court held that the Nature Dam diverts Poudre River water from a more recent channel back into its historic channel. "[Blur for the dam," in the water court's view, "the river would run in a different course." Thus, at the Nature Dam water from the Poudre River "is captured, it is controlled, and it is possessed" by Fort Collins, according to the water court. The water court concluded that the Nature Dam is a "diversion" and that the uses of the diverted water were beneficial. [20] [21] [22] [23]_ We first review the relevant statutes. Under section 37- 92- 103(3)(a), 15 C.R.S. (1990), an " ' [ a]ppropriation' means the application of a specified portion of the waters of the state to a beneficial use pursuant to the procedures prescribed by law...." Section 37- 92- 305(9)(b), 15 C.R.S. (1990), sets forth in part the criteria for awarding a conditional water appropriation: No claim for a conditional water right may be Water can be appropriated either by diverting water or by otherwise controlling water. An application for a conditional water right may be adjudicated if either diversion of water or control of water is established, assuming that the resultant use - is beneficial. A diversion in the conventional sense is not required. Under section 37- 92- 103(7), 15 C.R.S. (1990): "Diversion" or "divert" means removing water from its natural course or location, or controlling water in its natural course or location, by means of a ditch, canal, flume, reservoir, bypass, pipeline, conduit, *930 well, pump, or other structure or device. Thus, to effect a diversion under the statute, water either must be removed or it must be controlled. Because "the disjunctive 'or' demarcates different categories," Bloomer v. Boulder County Bd. of Comm'rs, 799 P.2d 942, 946 (Colo. 1990), removing water cannot be the same as controlling water. Removal is taking the water from its natural course or location, while control is exercised over the water in its natural course or location. Clearly, a diversion in the conventional sense of the term, meaning removing water and carrying it away from its natural course or location, is no longer required. See Colorado River Water Conservation Dist. v. Colorado Water Conservation Board, 197 Colo. 469, 474, 475, 594 P.2d 570, 573, 574 (1979). We have held that " 'there may be a constitutional appropriation of water without its being at the instant taken from the bed of the stream.' " Id. at 474, 594 P.2d at 573 (citing Latimer Co. v. Luthe, 8 Colo. 614, 9 P. 794 (1886) (emphasis deleted)). Controlling water within its natural course or location by some structure or device for a beneficial use thus may result in a valid appropriation. • A dam certainly qualifies as a structure or device. A dam therefore is comprehended by the provision that the requisite removal or control may be effected by some "structure or device" other than the ones listed, so long as the removal or control of the water Copyright (c) West Group 1999 No claim to original U.S. Govt. works