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at 1 �� 16 and 17 and the conclusion of law at � 43. Findings of Fact, Conclusions of Law, <br />Judgment and Decree ( "Decree "), Rec. Vol. 1, p. 279, App. 1. <br />16. The Court applied the definition stated at C.R.S. § 37 -92- 103(7) <br />to analyze whether or not the appropriation at the Fort Collins Power Plant <br />Dam constitutes a "diversion." The Fort Collins Power Plant Dam is a <br />concrete dam across the Poudre River which includes a boat chute and a fish <br />ladder. There has not been sufficient evidence to show that the flow of the <br />river at the Power Plant Dam is controlled for the purposes of this <br />Application. Water flows of the Poudre River are somewhat impounded <br />there and had been impounded there prior to this Application, or prior to the <br />improvements or the construction by Fort Collins for this appropriation, for <br />the purpose of diversion into the Coy Ditch. The construction of the boat <br />chute and fish ladder does not add any control to the river; water is directed <br />through the boat chute and fish ladder only at an unspecified low flow of the <br />river. <br />17. The Power Plant Diversion Dam does not constitute a diversion <br />contemplated by statute because the structure does not control the flow of <br />the river as anticipated by the statute; the river continues to flow as it did <br />prior to any construction in that area by the Applicant. See C.R.S. § 37 -92- <br />103(7). <br />43. The Court has found that the Power Plant Diversion Dam does <br />not constitute a diversion contemplated by statute; therefore, the <br />appropriation located at the structure is not separate or distinct from a <br />minimum stream flow appropriation. The appropriation at the Power Plant <br />Diversion Dam cannot and will not be completed with diligence because it <br />cannot be completed with diligence from the legal aspect. See C.R.S. § 37- <br />92- 305(9)N. Therefore, the court concludes, on the facts of this case, that <br />Fort Collins has not fulfilled the requirements of C.R.S. § 37- 92- 305(9)(b) <br />for the award of a decree for a conditional water right for the appropriation <br />claimed for the Power Plant Diversion Dam. <br />Because the conditional water right claim anticipates the diversion of water and the <br />application of diverted water to beneficial use within the stream channel, the water court <br />Thorn \RepBrf.& 2 <br />