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legislature did not impose the additional, unstated limits that the State and its Amici urge this Court to create. When the water court decision is read as a whole, the statement that additional limits on the "size and scope" of any RICD "would appear to infringe on the Constitutional right to appropriate" can only be read to mean that, absent explicit direction from the legislature which did not exist in this case, any additional court imposed flow limit on the RICD claim at issue might be unconstitutional.s VI. A RICD IS NOT AN INSTREAM FLOW RIGHT AND IS NOT SUBJECT TO THE LIMITATION OF THE STATE INSTREAM FLOW PROGRAM. Contrary to the State claims, RICDs are neither riparian rights nor in-stream flow rights. They are water rights for the water that in-channel diversion structures divert and control to create recreational opporiunities. Under the plain language of SB 216, such rights require a statutory diversion, and can only be claimed for the amount at a specific point that is "diverted, captured, controlled and placed to beneficial use... by physical control structures." C.R.S. § 37- 92-103(10.3).6 In contrast, a CWCB minimum in-stream flow is for a reach between two points on a stream, does not require pLny control and, in fact, "usually signifies the complete absence of 5 Whether or not the legislature could have imposed more stringent limits on RICDs without violating the constitutional right to appropriate was not an issue that was raised before the water court, and it should not be considered or decided by this Court. 6 The State argues at considerable length that prior to SB 216, appropriation of a water right in Colorado required a physical diversion. (State at 6-8). On that premise, it further characterizes RICDs as a legislative exception to the requirements of Colorado water law, and urges the Court to adopt strict limits on the size of such rights. This argument is entirely without merit. First, RICD claims involve water controlled within the channel and thus a "diversion" under the statutory definition in § 37-92-103(7). That is the essential holding of the Fort Collins decision. Second, the State completely misunderstands the CRWCD v. CWCB decision, and the many cases and authorities cited therein, which unequivocally hold that diversion of water out of the stream has never been a constitutional requirement for an appropriation in Colorado. Colorado River Water Cons. District v. Colorado Water Cons. Bd., 598 P.2d 570, 572-575 (Colo. 1979); see also Larimer Co. Reservoir Co. v. Luthe, 9 P. 794, 796 (Colo 1886)("there may be a constitutional appropriation of water without its being at the instant taken from the bed of the stream."). Even the State Amici concede that this Court "has held that a physical diversion is not a constitutional requirement." (State Amici at 19). Tm1650 13