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<br />of Law and Decree o, f the Water Court Concerning the Application, for Water Rights of the Town.
<br />of Breckenridge, Water Division 5, Case No. OOCW281 (2002).
<br />In an apparent attempt to distinguish these cases from the instant one, the Staff notes that
<br />the statutory definition of "diversion" changed under S.B. 216. Staff Prehearing Statement at 2.
<br />Prior to enactment of S.B. 216, "diversion" was defined as "removing water from its natural
<br />course or location, or controlling water in its natural course or location, by means of a ditch,
<br />canal, flume, reservoir, bypass, pipeline, conduit, well, pump, or other structure or device."
<br />C.R.S. § 37-92-103(7)(2000). By S.B. 216, the legislature added the following provision to the
<br />definition: "except that only a county, municipality, city and county, water district, water and
<br />sanitation district, water conservation district, or water conservancy district may control water in
<br />its natural course or location for recreation in-channel diversions. This does not apply to
<br />applications filed prior to January l, 2001." C.R.S. § 37-92-103(7)(2001). The only change to
<br />the definition, then, was that S.B. 216 limited the acquisition of an RICD right to certain
<br />governmental entities. The Staff concedes that the Applicant is a proper entity to acquire an
<br />RICD right, Staff Prehearing Statement at 2, and it is unclear in what respect, if any, the
<br />definitional change distinguishes the instant case from those cited above or weakens the
<br />Applicant's claim.
<br />The Staff also intimates that under City of Thornton v. City of Fort Collins, 830 P.2d 915
<br />(Colo. 1992), a structure can be found to capture, possess and control water only at low flows
<br />and only if the structure does not allow the water to continue to flow as it did before
<br />construction. Staff Prehearing Statement at 2. Under this case law, the Staff argues, the
<br />Applicant is not entitled to the water right it seeks. Id. While the court in Fort Collins found
<br />that the structures in question there controlled and diverted water only at low flows, 830 P.2d at
<br />932, it did not hold or even suggest that different structures, such as those in question here, could
<br />not divert or control water at higher flows. The Staffrecognizes that the Gunnison Course
<br />structures divert and control water in stating that "these structures will capture and control some
<br />amount of water [at least at certain flow rates]." Staff Prehearing Statement at 2.1 Thus, the
<br />Staff's blanket suggestion that the Applicant cannot satisfy the rule of Fort Collitis under any
<br />flow conditions is without merit.
<br />Finally, despite Mr. Lacy's position that the Gunnison Course wili divert and control
<br />water at the flow rates sought, see Letter from Gary M. Lacy to Cynthia Covell clated June 21,
<br />2002 ("Lacy Report"), attached to Applicant's Prehearing Statement as Exhibit C, and despite
<br />the repeated findings of the courts of this state and, recently, of the CWCB that Mr. Lacy's
<br />designs do constitute diversions, see Findings of Fact and Final Recommendation of the
<br />Colorado Water Conservation Board to the Water Court, Water Division 2, Case No. O1CW160,
<br />the Staff argues that the Applicant has failed to demonstrate that the structures will divert,
<br />capture and control water. Staff Prehearing Statemertt at 2. To require actual construction of the
<br />Gunnison Course to establish that it will divert water, as it seems the Staffwould like to do,
<br />would be contrary to the policy under Colorado law of allowing an applicant to acquire a
<br />conditional water right before completing construction of the diversion structure. See C.R.S. §
<br />3 7-92-103 (6). ' The quoted statement seems inconsistent with the Staffs earlier contendon that these sWctures "generally allow
<br />the water to continue to flow as it did prior to their consUuction." StafJ"Prehearing Statement at 2.
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