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there has not been sufficient evidence presented to the Court that the flow of the <br />river at the Power Plant Diversion Dam is controlled for the purposes of this <br />application. Water is somewhat impounded there and has been impounded there <br />prior to this application, or prior to the improvements or the construction by the <br />applicant for this appropriation for the purposes of diversion into the Coy Ditch. The <br />construction of the boat chute and fish ladder does not add any control to the river <br />water is directed through the boat chute and fish ladder only at an unspecified low <br />flow of the river.... The Court finds that the Power Plant Diversion Dam does not <br />control the flow of the river as anticipated by statute; that the river continues to flow <br />as it did prior to any construction in that area by the applicant [Emphasis added] <br />Supp.Rec., p. 10, 1. 2 -12, 20 -23. Thus, contrary to Fort Collins' assertion, the water court did not <br />deny Fort Collins a water right at the Power Plant Diversion Dam because the dam only controls <br />water in low flow conditions. The water court denied Fort Collins claimed appropriation at the dam <br />because Fort Collins put on insufficient evidence to show that the 55 c.f.s. right it claimed would be <br />controlled for the claimed beneficial uses. The addition of the boat chute and fish ladder to the dam <br />failed to control the water any differently than the dam which had controlled water in the past for <br />erosion control purposes and to facilitate diversions by the Coy Ditch. Moreover, Fort Collins' <br />witnesses Nastan and Smith both testified on cross - examination that they were unaware whether the <br />55 c.f.s. flow sought by Fort Collins was even taken into account when the boat chute and fish ladder <br />were designed. Rec.Vol.III, p. 130,1. 12 -20; p. 238, 1. 6 -14. The water court did not err in holding <br />that there was insufficient evidence to demonstrate that the 55 c.f.s. sought by Fort Collins at the <br />Power Plant Diversion Dam "is controlled for the purposes of this application." <br />Furthermore, Fort Collins' claim that the court relied upon stricken evidence to <br />support it holding is erroneous. The water court did not need to rely upon Mr. Nastan's stricken <br />testimony to determine that boating at the dam was dangerous, as testimony was subsequently <br />presented by another Fort Collins witness, Mr. Smith, regarding the dangerous nature of boating at <br />16 <br />