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and October, and close to the entire hydrograph for May, June, and July. These claims <br />will effectively limit water development upstream of the Vail course by any user other <br />than water users under contract with the Eagle District. <br />In Case No. OOCW281, the Town of Breckenridge ( "Breckenridge ") applied for a <br />conditional recreational water rights decree for a whitewater course. The Breckenridge <br />course includes approximately 15 formations made up of new and pre- existing boulders. <br />In its application, Breckenridge is claiming water in amounts representing the entire <br />hydrograph for the Blue River for the months of April through October. These claims <br />will effectively eliminate water development upstream of the Breckenridge course by any <br />party other than Breckenridge. <br />The State and Division Engineers filed statements of opposition to both <br />applications on February 26, 2001. The Colorado Water Conservation Board filed <br />statements of opposition to both applications on February 27 and 28, 2001. <br />STATEMENT OF THE ISSUES <br />I. The Applicants Cannot Establish that the Water Claimed Has Been <br />"Diverted, Stored, or Otherwise Captured, Possessed, and Controlled." <br />II. The Applicants Cannot Establish the Amounts of Water Claimed are <br />Beneficially Used under Colorado Water Law. <br />ARGUMENT <br />I. THE APPLICANTS CANNOT ESTABLISH THE WATER <br />CLAIMED HAS BEEN DIVERTED, STORED, CAPTURED, POSSESSED, OR <br />CONTROLLED. <br />"The first essential of an appropriation is the actual diversion of the water." <br />Colorado River Water Cons. Dist. v. Rocky Mtn. Power Co. 406 P.2d 798, 800 (Colo. <br />1965). The applicants contend that this Court should expand the definition of "divert" to <br />include water flowing freely in the stream, and over the top of boulder formations. The <br />State believes that the applicants' boulder formations are inconsistent with the legal <br />definition and historical purpose of the "diversion" requirement. <br />A. The applicants do not "divert" water as that term has been defined in <br />Colorado. <br />Colorado has always required water to be diverted from a stream channel or <br />impounded within an on- channel dam. Thomas v. Guiraud 6 Colo. 530, 533 (1883); <br />Larimer Co. v. Luthe 8 Colo. 614, 9 P. 794 (1886). The Colorado Supreme Court has <br />allowed appropriations where water was either diverted or impounded for later diversion, <br />