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I I I I I I I' I I I I I I I I I I I I the city agreed to amend its application. The amended application deleted the reference to the river corridor as the diversion structure, and substituted "the Fort Collins Nature Center Diversion Dam" and "the Fort Collins Power Plant Diversion Dam" as the diversion points. The Nature Dam was then being build by the city in order to divert the river back into its historic channel and away from a channel cut during heavy rains in 1983 and 1984. Despite its name, the Power Dam does not supply hydropower, but is so- named after a nearby power plant. The Power Dam was then being modified by adding a boat chute for kayaks and inner tubs, and a fish ladder. The court held that Fort Collins was entitled to water rights for both the Nature Dam and the Power Dam. The court noted that the statutory definition of "divert" encompassed both water which is "removed" QI "controlled." "Clearly, a diversion in the conventional sense of the term, meaning removing water and carrying it away from its natural course or location, is no longer required. ... Controlling water within its natural course or location by some structure or device for a beneficial use thus may result in a valid appropriation."31 The court found that the kayak chute and fish ladder in the Power Dam each constituted a sufficient "structure or device" to qualify as a diversion because they "concentrate the flow of water to serve their intended purposes."32 Although the Colorado General Assembly had expressly declared that the CWCB was "vested with the exclusive authority" to appropriate minimum streamflows,33 the court ruled that Fort Collins rights were different: ''The exclusive authority vested in the CWCB to appropriate minimum streamflows does not detract from the right to divert and to put to beneficial use unappropriated waters by removal or control."34 What is .truly remarkable about the case is that the court declared that the water right was good not only to call water down to the point of diversion (the two dams), but could be used to keep water in the river downstream: ''Thus, Fort Collins may validly exercise dominion over the Poudre River water once it passes the Nature Dam and continues within that segment of the river in which water is put to beneficial use."3S In \Jther words, once having "concentrated" a small fraction of the flow of the river as it flowed over some boulders arranged into a boat chute or through a fish ladder, the entire 55 cfs right could then be protected as it continued to flow down the river through parks and open space. The similarity of such a right to an instream right was noted by the court: "Although controlling water within its natural course or location by some structure or device may effect a result which is similar to a minimum flow, that does not mean that the appropriation effected by the structure is invalid under the Act [which vested exclusive authority of instream flow appropriations in the CWCB]."36 2-9