BOARD01483

• Board Meeting Date: 7/24/2000
• Description: ISF Section - Recreational Instream Flows - Policy Discussion
• Board Meetings - Doc Type: Memo

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830 P.2d 915. City of Thornton By and Through Utilities Bd. v, City of Fort Collins, (Colo. 1992)

water at the Nature Dam.

[17J We have already held that Thornton was on
notice of the intent by Fort Collins to appropriate 55
cfs of Poudre River Water from some point or points
within the Corridor at least as of December 31,
1986, the date on which the original application was
filed. (FN7) The first and third *928 required
functions were thus performed at least as of
December 31, 1986. The issues now are whether
the first and third functions were performed by a
relevant act earlier than December 31. 1986, and
when exactly was the second required function
performed by a relevant act. The earliest date on
which it can be said that the three functions were
performed by relevant acts determines the
appropriation date.

To properly apply the first step test to these issues
we begin with the appropriation date awarded by the
water court and inquire whether the relevant act
which was the basis of the appropriation date could
have been deemed to have performed all three
required functions, The relevant act was the formal
adoption of the Plan by the Fort Collins city council
on February 18, 1986, If adoption of the Plan
performed none of the required functions, then it
cannot be the basis for the appropriation date. The
inquiry then would proceed to other relevant acts,
possibly done before but most likely after February
18, 1986, to determine the earliest date on which it
can be said that all three functions of the overt act(s)
prong of the first step have been performed.

[18] Reviewing the evidence, we fmd that nothing
in the Plan as adopted by Fort Collins could have
placed Thornton or anyone else on notice that Fort
Collins intended to appropriate water from the
Poudre River pursuant to the Act. See S
37-92-103(3)(a), 15 C.R.S. (1990). Nothing in the
Plan indicates that a legal appropriation of water is
required to implement the Plan, If anything, the
testimonial evidence shows that an appropriation of
water was not contemplated. If an appropriation of
water were a condition precedent to the success of
the Plan, then it surely would have received a
modicum of specific discussion. Although the Plan
does contemplate the enhancement of the natural
environment, many land use plans implicate
environmental issues, including water management
and water habitat issues. without thereby constituting
an intent to appropriate water under the Act.
Conceding the otherwise laudable intent of the Plan.

Page 13

for purposes of the first step test it must fail as an
act sufficiently overt as to have put interested parties
on notice that a legal appropriation of Poudre River
water was intended. (FN8) Thus, adoption of the
Plan cannot be deemed to have performed either the
first or the third required functions under the first
step test. For the same reasons, the formal adoption
of the Plan cannot be said to have performed the
second required function of demonstrating that a
substantial measure has been taken to apply water to
beneficial use. Thus, we hold that Fort Collins did
not take the first step toward appropriating the
Poudre River water on February 18, 1986, the date-
on which the Plan was adopted,

[19] The water court cited a field trip by Fort
Collins staff members at which photographs of what
eventually would be the site of the Nature Dam were
taken as confirming evidence of the formation of
Fort Collins's intent to appropriate water as of
February 18, 1986. That field trip did occur in
February of 1986, but no more specific date is found
in the record. Even if we were to assign the 18th as
the date of the February 1986 field trip, such an act
CQuld not be deemed to have manifested an intent to
appropriate water or to have performed any other
required function. See Bar 70, 703 P.2d at 1307-08
(a field trip in the nature of a preliminary
reconnaissance neither manifested an intent to
appropriate water, nor demonstrated that a
substantial measure was taken to apply waters to
beneficial use, nor provided notice to interested
parties) .

The other relevant acts which the water court
found to support an appropriation date of February
18, 1986, occurred after *929 February 18, 1986,
and as such cannot be deemed to establish the
appropriation date of February 18, 1986. These
post-February 18, 1986, acts were the posting of
signs along the Corridor on December 31, 1986, and
the publication in a local newspaper, also on
December 31, 1986, of a notice to appropriate
water. The dates of both acts coincide with the date
of the filing of the original application for
conditional water rights, an act which we have said
performed the functions of manifesting intent and of
providing notice to interested parties. It thus
appears unlikely that the appropriation date can be
set earlier than December 31, 1986, However, we
remand this issue for a conclusive determination of
the date on which the performance of all three
required functions by a relevant act or acts

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