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 7 L�l • • substituting therefor two specific diversionary structures within the Corridor, namely, the Fort Collins Nature Center Diversion Dam (Nature Dam) and the Fort Collins Power Plant Diversion Dam (Power Dam). The Nature Dam is a relatively new structure designed and built to divert the Poudre River back into its "historic" channel and away from a channel cut after heavy rains and flooding in 1983 -84. Along the historic channel, Colorado State University (CSU) owns and maintains property slated for development as the Northern Colorado Nature Center. The Nature Center offers an interpretive trail system and picnic grounds for day use. Future plans include an arboretum and the relocation of the CSU raptor rehabilitation program to the Nature Center. Fort Collins and CSU cooperate with regard to the Nature Center and the continued development of the historic channel. Construction of the Nature Dam began after 1986 but was completed before trial to the water court. The Power Dam is an older structure on the Poudre River owned and maintained by Fort Collins. The Power Dam is so named because of its proximity to a retired municipal power plant which has received local historical designation. The old plant and the Power Dam are in the midst of numerous parks, a visual arts center and a community center, all integral to the Corridor. Other, valid appropriations of Poudre River water not at issue in this case are effected by Fort Collins at the Power Dam. Recently, Fort Collins renovated the Power Dam by strengthening the structure itself and by adding a boat chute and a fish ladder designed for recreational use and piscatorial preservation respectively. The relevant provisions of the 1988 amendments are the following: The legal description of the stream segment designated [in the 1986 application as the Corridor] has been narrowed to two individual points of diversion, ... [i.e., the Nature Dam and the Power Dam] [q 2.]. Fort Collins has formulated the intent and taken overt action to create the ... Corridor within which Fort Collins will construct diversion structures and use water within the Cache La Poudre River for municipal purposes, including recreational, piscatorial, fishery, wildlife, and *921 other beneficial uses. Construction and planning is underway for a system of trails along the river, diversion structures within the river, development of a fishery, preservation and enhancement of wildlife habitat and aquatic life, as well as other public purposes [¶ S.A.]. Fort Collins has already initiated construction of the [Power Dam,] ... which includes a boat chute for recreational use, and a fish ladder for piscatorial purposes. This diversion structure will - be used to control and regulate the flow of the Poudre River to implement the intended beneficial uses of water. Additionally, Fort Collins is designing and plans to construct the [Nature Dam]. It will be a dam across the Poudre River which will divert water from the current river channel (carved during the 1983 and 1984 run -offs) back into the historic river channel adjacent to the dam.... This diversion structure will control and regulate the flow of the Poudre River to implement the intended beneficial uses of water [¶ S.B.]. [The 19861 Application is amended ... by withdrawing the reference to "in- stream rights," since the definition of these rights by stream segments has been narrowed to two individual points of diversion.... At all times since the date of appropriation ... [the] purpose was to divert, as defined by statute, within the river's natural course or location, or otherwise capture, possess and control water for the described beneficial uses [¶ 7 ]. The 1988 amendments claimed 55 cfs of Poudre River water for the Nature Dam and 55 cfs for the Power Dam, both with appropriation dates of February 18, 1986, the same appropriation date for the 55 cfs of water for the Corridor in the 1986 application. Due to the changes made by the 1988 amendments, most of the statements of opposition to the 1986 application were withdrawn. Thornton, however, along with the Northern Colorado Water Conservancy District (NCWCD), timely filed supplemental statements of opposition, objecting to the 1988 amendments. In its supplemental statement of opposition, Thornton claimed that its water rights might be injured by granting the application. Thornton asserted that before the water court could Copyright (c) West Group 1999 No claim to original U.S. Govt. works