Case No. 90SA514 Thornton v. Fort Collins

• Description: RICD Legislation - SB 37
• State: CO
• Basin: South Platte
• Water Division: 1
• Date: 4/20/1992
• Author: West Group, Supreme Court of Colorado
• Title: Case No. 90SA514 Thornton v. Fort Collins
• Water Supply Pro - Doc Type: Court Documents

830 P.2d 915, City of Thornton By and Through Utilities Bd. v. City of Fort Collins, (Colo. 1992) Page 16
otherwise a minimum stream flow without control
by some structure or device as a diversion, that is,
removal or control of water by some structure or
device, does not transform the former into the latter
from a legal point of view. However, it is clear that
the Nature Dam is a structure which either removes
water from its natural course or location or controls
water within its natural course or location given that
the Poudre's "historic" channel may be considered
the River's natural course or location. The uses of
the Poudre River water so controlled are
recreational, piscatorial and wildlife uses, all valid
under the Act.
[27] [28] The water court also found that Fort
Collins does not claim a right to exercise dominion
and control of the water after it leaves the point of
the Nature Dam. Thornton argues that this means
that Fort Collins has not appropriated the waters for
the claimed beneficial uses because the water may
be appropriated by others after leaving the Nature
Dam thereby preventing its beneficial use by Fort
Collins. It appears that the water court included in
its decree a finding of no claim to control the water
because of the negotiated settlement and stipulations
made between Fort Collins and the CWCB.
However, a "stipulation cannot be used to bind a
court in the determination of questions of law or
mixed questions of law and fact." Bar 70, at 1306
(note omitted). Whatever the reason that the CWCB
insisted that Fort Collins so disclaim control of the
water after it passed the Nature Dam, we hold that
no such disclaimer is required in order to fmd that
the appropriation is a valid diversion and /or to
insure that the appropriation is not a minimum
stream flow exclusively reserved to the CWCB.
Under the statutes, to control water within its natural
course or location means that the appropriator
exercises control over the water at least to the extent
that the water continues to be put to beneficial use
by the appropriator, in this instance by Fort Collins.
Thus, Fort Collins may validly exercise dominion
over the Poudre River water once it passes the
Nature Dam and continues within that segment of
the river in which such water is put to beneficial
use. If and when the water passes downstream from
that controlled segment of the Poudre it may be
*932 subject to further appropriation by others.
That CSU owns and operates the land along which
the beneficial uses are to take place does not in and
of itself mean that the beneficial uses can not or will
not take place. See FWS Land and Cattle Co. v.
State of Colo. Div. of Wildlife, 795 P.2d 837, 840
(Colo.1990). Because we have held that control of
water within its natural course or location by a
structure may be a valid appropriation under the
Act, upon remand the water court must conclusively
determine whether the agreements between Fort
Collins and CSU are such as to show that the
claimed waters can and will be put to the beneficial
uses stated in the application.
III
On cross - appeal Fort Collins argues that the water
court erred in declining to award a conditional water -
right for the Power Dam. The water court found
that there was insufficient "evidence to show that the
flow of the river at the Power Dam is controlled."
Specifically, the water court held that the boat chute
and the fish ladder at the Power Dam do "not add
any control to the river; water is directed through
the boat chute and the fish ladder only at an
unspecified low flow of the river. " The water court
concluded that "the river continues to flow as it did
prior to any construction" at the Power Dam and
that therefore the effect of the Power Dam is not a
"diversion" under section 37 -92- 103(7), 15 C.R.S.
(1990). As it is not a legal diversion, the
appropriation there would constitute an invalid
minimum stream flow appropriation, according to
the water court.
[29] The boat chute and the fish ladder were
included in the reconstruction and renovation of the
Power Dam in 1987. In general, boat chutes and
fish ladders, when properly designed and
constructed, are structures which concentrate the
flow of water to serve their intended purposes. A
chute or ladder therefore may qualify as a "structure
or device" which controls water in its natural course
or location under section 37- 92- 103(7).
The water court's reasoning that the boat chute and
the fish ladder at the renovated Power Dam do not
add any control to the river or that the river
continues to flow as it did prior to the renovation of
the Power Dam suggests that the chute and the
ladder in fact fail to function as designed. That is,
the chute does not allow kayaks or other flotation
devices to pass through the Power Dam and the
ladder does not assist fish to scale the Power Dam.
If this is the case, then the waters claimed at the
Power Dam are not being put to beneficial use, and
the claimed appropriation may be denied for this
reason.
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