Case No. 90SA514 Thornton v. Fort Collins

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830 P.2d 915, City of Thornton By and Through Utilities Bd. v. City of Fort Collins, (Colo. 1992) Page 6 water right. As to the appeal, we affirm in part and reverse in part and remand. As to the cross - appeal, we reverse and remand. First, we review the applications by Fort Collins for conditional water rights and Thornton's objections. This case began when Fort Collins sought approval of conditional surface water rights along a segment of the Cache La Poudre River (Poudre River) which runs roughly from the northwest boundary diagonally toward the southeast boundary of Fort Collins. Fort Collins refers to that segment of the Poudre River as the Poudre River Recreation Corridor (Corridor). The Corridor is comprised of several parks, open space areas and trail systems. With the development of the Corridor, Fort Collins has enhanced the recreational opportunities and preserved the piscatory and wildlife resources of the Poudre River for the enjoyment of the residents of and visitors to Fort Collins. The application for the Poudre River water rights was filed with the water court on December 31, 1986, pursuant to the Water Right Determination and Administration Act (Act), §§ 37 -92 -101, et seq., 15 C.R.S. (1990). The 1986 application claimed 55 cubic feet per second (55 cfs) of Poudre River water for the Corridor "for municipal purposes, including recreational, piscatorial, fishery, wildlife, and other beneficial uses." The appropriation was claimed as of February 18, 1986, the date when the Fort Collins city council formally adopted the Poudre River Trust Land Use Policy Plan (Plan). The Plan outlines the various projects to be developed in the downtown section of the Corridor. The Corridor was the named "diversionary structure" in the 1986 application. In addition to identifying the structure, the appropriation date and the amount and uses of water, the 1986 application also stated in relevant-part: No diversions from the [Poudre] river are anticipated [¶ 3.A.]. Construction and planning is underway for a system of trails along the river, development of a fishery through [the Corridor], preservation and enhancement of wildlife habitat and aquatic life, as well as other public purposes. The existence of in- stream flows of water up to the amounts specified above, undiminished in both quantity and quality, are necessary to fulfill the purposes of the Recreation Corridor [¶ 7.B. (i) ] . *920 [T]he uses will take place in the streambed ... [$ 8.B.]. Since no diversions from the Poudre River are necessary to accomplish the actual and intended beneficial uses described above, Fort Collins specifically requests that the Court confirm these ... conditional water rights as in- stream rights, without the necessity for making any diversion from the river channel; [and] that the Court find that all of the uses described above are beneficial uses of water.... Additionally, Fort Collins requests a determination that all of these conditional rights are part of an integrated plan by the City to provide for ... recreational ... uses within the [Corridor], and that work on any part of this plan constitutes work on the entire plan for the purpose of subsequent diligence proceedings [19.]. A statement of opposition to this 1986 application was filed by Thornton on February 24, 1987. Other parties, including the Colorado Water Conservation Board (CWCB) and the state engineer, also filed objections. The objections were largely based on the claim or impression that Fort Collins was applying for minimum stream flow rights contrary to law. After negotiations with the CWCB and the state engineer, Fort Collins agreed to amend its 1986 application. The settlement with the CWCB included certain stipulations and a proposed decree. The amendments were filed with the water court on June 1, 1988. According to the introductory remarks to these 1988 amendments, the amendments were generally "intended to narrow the scope of and to clarify" the 1986 application and were "consistent with and intended to relate back to the filing" of the 1986 application. In particular, the 1988 amendments deleted the Corridor as the named diversionary structure, • • • Copyright (c) West Group 1999 No claim to original U.S. Govt. works