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notes, it was in that context that SB 212 was proposed and then passed in 1987. The State fails <br />to disclose, however, that after SB 212 passed, Fort Collins amended its application in 1988 <br />claiming water rights for the Nature Dam and the Power Dam's boat chute and fish ladder. Id. at <br />920-21. Accordingly, SB 212 was applicable to the amended application and, contrary to the <br />State's assertion, was expressly considered in this Court's Fort Collins decision. <br />Specifically, this Court considered the SB 212 revisions to § 37-92-102(3) which clarify <br />that "exclusive authority [is] vested in the CWCB to appropriate minimum stream flows." Id. at <br />930. In doing so, the Court rejected the "exclusive authority" argument now made by the State, <br />easily distinguishing between the CWCB's right to acquire minimum in-stream flow water rights <br />under SB 97, and the right of the public to appropriate a water right "by a structure or device ... <br />which controls water within its natural watercourse." Id. at 930-31. Simply stated, "[t]he <br />exclusive authority vested in the CWCB to appropriate minimum stream flows does not detract <br />from the right to put to beneficial use unappropriated waters by removal or control." Id. at 930. <br />Thus, the State's argument as to why Fort Collins should be seriously limited is based on the <br />same argument already raised, litigated, and rejected by this Court in Fort Collins. <br />The Fort Collins decision simply reflects one application of the statutory definition of <br />"diversion" that recognizes an appropriation in circumstances where there is in-channel control <br />exerted by some structure or device. It is not a narrow exception to the law as suggested now by <br />the State. (State at 9). Again, the CWCB previously took a completely contrary position in its <br />January 2001 white paper, in which it explained that Ft. Collins "held that boat chutes and fish <br />ladders are sfructures that concentrate the flow of water. Therefore, they may qualify as a <br />`structure or device' that controls water in its natural course or location (and thus qualify for a <br />Tm1650 15