Case No. 01SA252 Amici Curiae Brief of Colorado Springs Utilities February 2002

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However, the Fort Collins case, on which Golden relied, involved. a claim of a far different nature. In that situation, the "control" structures were two dams, including a boat chute and fish ladder that were constructed in an existing dam and were designed to facilitate boat and fish passage over the dam only at low flows. Fort Collins, 830 P.2d at 932. When "properly designed and constructed," the structures "concentrate[d] the flow of water to serve their intended purpose." Id. By concentrating the flow in this manner, the former would "allow kayaks or other floatation devices to pass through the Power Dam" at low flows, while the latter would assist fish to scale the Dam. Id. In other words, absent the "controlling" structures which concentrated the flows, the intended uses could not occur. The Court noted that recreational and wildlife uses (defined as boat and fish passage) were beneficial uses. When water overtopped the dam at higher flows than the minimum, the structures were no longer needed to allow boat and fish passage; thus, there was no claim for such high flows. By contrast, Golden simply installed flow deflector devices designed to create whitewater features. There was evidently no effort made to maximize experience and minimize water requirements through course design modifications. Rather, it appears that the course was constructed to accommodate the flows being sought. At flows in excess of 30 cfs, the structures no longer served to concentrate and direct minimum flows for safe boat passage. (Volume 3, p. 545)._ That is to say, once flows exceeded 30 cfs, Golden's structures became unnecessary to achieve recreational boating use. Stated another way, at flows above 30 cfs, the structures do not control water for a beneficial use as defined in the Fort Collins decision. CADATATner \Golden AppealTull Brief 2 -7 -02 glmwpd February 7, 2002 (1:30pm) 7