Opening Brief - Laserfiche WebLink

Home Browse Search

403). One legislator expressed concern that the Fort Collins filing might give rise to the exact type of bank -to -bank appropriations claimed here. (v. II, pp. 445 -446). Despite this clear intent, each of the concerns addressed by the Legislature is present in the Applicant's application. This application seeks to command the entire flow of a stream; from bank to bank; with no objective test as to reasonableness or duty of water; no limits on use or the right to subordinate to other uses (such as municipal and snowmaking); and no administrative or statutory limits or provisions for an instream flow appropriation (as required of the CWCB). This Court must not allow the Applicant to obtain a water right in conflict with the Legislature's clear intent. B. This Court upheld Fort Collins' minimal water right application for a dam impoundment structure that diverts, captures, possesses and controls water, but the Fort Collins holding cannot be extended to approve rocks in a stream used to create waves or an appropriation of a water right for virtually all of the water in the stream. In 1992, this Court reviewed Fort Collins' application, and granted a minimum flow water right to Fort Collins for a traditional impoundment structure into which the city had built a narrow notch to allow safe boat passage and fish ladders. Because the dam controlled and impounded the water and the notch in the dam concentrated the flow of water into the boat chute and fish ladder, granting the Fort Collins water right was at most a marginal expansion of the definition of control. (Exhibit C, Exhibit D). See Fort Collins 830 P.2d at 931 -932. Further, the Court also limited the holding appropriately, requiring the water to be measurably diverted or controlled in order not to qualify as an instream flow. This Court held that if the water "continues to flow as it did prior to the renovation," then the dam would not 14