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but has always required some diversion of the water. The Court also has allowed <br />appropriations by impoundment for recreational or piscatorial uses, but only where those <br />uses were incidental to other beneficial uses requiring a diversion. Thus, while a <br />diversion of water into retaining ponds may be an appropriation, allowing water to <br />remain in the stream is not "since it would allow the owner of a riparian right to <br />appropriate the entire volume of the water of the river, without regard to the extent of his <br />beneficial use." Colorado River Water Cons. Dist. v. Rocky Mtn. Power Co. 406 P.2d <br />799 -800 (Colo. 1965); citin Schodde v. Twin Falls Land and Water Co. 224 U.S. 107 <br />(1912). <br />In 1973, the General Assembly passed Senate Bill 97, creating a narrow <br />exception to the diversion/capture /possession requirements for the CWCB only. <br />Senate Bill 97 vested the CWCB with the authority to appropriate, in the stream <br />channel, the minimum amount of water necessary to preserve the natural <br />environment without a diversion or impoundment. The Colorado Supreme Court, in <br />holding Senate Bill 97 constitutional, emphasized that it was "not hereby causing any <br />erosion of the many opinions of this court, some of which are cited above, holding that a <br />diversion is an essential element of the water appropriations involved in those cases." <br />Colorado River Water Conservation Dist. v. Colorado Water Conservation Bd. 594 P.2d <br />570, 575 (Colo. 1979). <br />It is undisputed that the applicants' in- channel boulder formations do not divert <br />water out of the stream or impound water behind an on- channel dam. It is also <br />undisputed that the applicants are not entitled to appropriate instream flows. Finally, it is <br />undisputed that the applicants do not "divert" water as that term traditionally has been <br />defined in Colorado. <br />B. The Fort Collins Decision Should Not Be Expanded to Allow Water <br />Rights In the Stream Channel Where There is No Dam Capturing, Possessing, <br />Controlling or Impounding the Water Within the Stream. <br />Notwithstanding the fact that the applicants' in- channel boulder formations do <br />not divert water out of the stream or impound water behind an on- channel dam, the <br />applicants' contend that their in- channel boulder formations satisfy the diversion <br />' See e.g., Cache La Poudre Res. Co. v. Water Supply & Storage Co. 62 P. 420, 421 (Colo. <br />1900); Windsor Res. & Canal Co. y. Hoffman Mill Co 109 P. 422 (Colo. 1910); Seven Lakes <br />Res. Co. v. Majors 196 P. 334 (Colo. 1921); North Sterling Irr. Dist. v. Riverside Reservoir & <br />Land Co., 200 P.2d 933, 935 (Colo. 1948); Metro. Water Ass'n v. Colo. River Water Cons. Dist. <br />365 P.2d 273 (Colo. 1961); Bunger v. Uncompahgre 557 P.2d 389, (Colo. 1976) (all storage <br />cases involving diversion). <br />2 I Bd. of County Com'rs v. Crystal Creek, 14 P.3d 325, 339 -340 (Colo. 2000), the court allowed <br />a claim for recreational use noting the importance of it being only one of the purposes of the <br />reservoirs. See also Application for Water Rights, 929 P.2d 718 (Colo. 1996) (recreation and <br />piscatorial incidental uses); Bijou Irr. Dist. v. Empire Club 804 P.2d 175 (Colo. 199 1)( <br />recreational and piscatorial uses incidental, but denied nonetheless). <br />