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II. THE FORT COLLINS POWER PLANT DIVERSION DAM CAUSES WATER TO <br />BE CONTROLLED IN THE NATURAL COURSE OF THE CACHE LA POUDRE <br />RIVER, AS ANTICIPATED BY THE DEFINITION OF DIVERSION AT C.R.S. <br />§ 37 -92- 103(7). <br />The water court relied on the definition of diversion to determine if Fort Collins <br />claimed water rights were distinguishable from minimum stream flow rights. Decree, <br />' 1 ' 16 -19 and 39 -44, Rec. Vol. 1, pp. 283 -84 and 287 -88, App. 1. <br />"Diversion" or "divert" means removing water from its natural course or <br />location, or controlling water in its natural course or location, by means of <br />a ditch, canal, flume, reservoir, bypass, pipeline, conduit, well, pump, or <br />other structure or device. <br />C.R.S. § 37 -91- 103(7), App. 2. The "can and will" statute imposes the requirement that <br />a claim for conditional water right may be decreed only if waters can and will be diverted <br />and beneficially used. <br />No claim for a conditional water right may be recognized or a decree <br />therefor granted except to the extent that it is established that the waters can <br />be and will be diverted, stored, or otherwise captured, possessed, and <br />controlled and will be beneficially used and that the project can and will be <br />completed with diligence and within a reasonable time. <br />C.R.S. § 37- 92- 305(9)(b), App. 2. Section 305(9) cannot be used to deny a Colorado <br />Water Conservation Board minimum stream flow claim. C.R.S. § 37- 92- 305(9)(a), App. <br />2. <br />The control of water found by the water court satisfies the definition of diversion. <br />The water court found that (1) water flows of the Poudre River are, to some extent, <br />impounded upstream of the primary structure of the Power Plant Diversion Dam, and (2) <br />under a range of low flow conditions, which as yet are not specified, water is directed <br />Thorn \RepBrf.& 4 <br />