Trial Brief (2) - Laserfiche WebLink

Home Browse Search

The boat chute was a notch in the dam that controlled and concentrated the flow of water into the boat chute. The Fort Collins dam structure impounded the water. The Court held that "the chute and the ladder control and direct river water only at unspecified low flows in the river," which was not a defect since that is precisely what they were designed to do. Fort Collins. 830 P.2d at 932. Based upon the low -flow notch that narrowly controlled the water to allow safe passage, the Court found that the Fort Collins boat chute conformed to the diversion requirements of Colorado water law. See Fort Collins 830 P.2d at 931 -932. The court noted that if the water "continues to flow as it did prior to the renovation," then the dam would not control the water and the claim would have been an illegal instream flow. Exhibits S -28.1 and 28.2 explicitly show how the Fort Collins boat chute changed the flow of the river. 2. Senate Bill 212 and CWCB's creation The legislature passed Senate Bill 212 ( "SB 212 ") in response to the Fort Collins application, which went into effect in 1987. It granted the CWCB the "exclusive authority" to appropriate water for instream flows. SB 212; § 37 -92 -102, C.R.S. (1987). SB 212 also added the following language: In the adjudication of water rights pursuant to this article and other applicable law, no other person or entity shall be granted a decree adjudicating a right to water or interests in water for instream flows in a stream channel between specific points, or for natural surface water levels or volumes for natural lakes, for any purpose whatsoever. 4 "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 ladder in fact fail to function as designed.... If this is the case, then the waters claimed at the Power Dam are not being put to beneficial use...." Fort Collins 830 P.2d at 932.