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requirement. The applicants contend that the Colorado Supreme Court's ruling in C ity <br />of Thornton v. City of Fort Collins 830 P.2d 915 (Colo. 1992) expanded the definition <br />of the terms "divert" to encompass rock formations in the stream. <br />The State disagrees strongly with the applicants' expansive interpretation of the <br />Fort Collins decision. First, the language of Fort Collins does not suggest that the <br />Supreme Court intended to define "capture, possession and control" to include water <br />flowing over the top of a boulder formation or not impounded in a dam. The Supreme <br />Court in Fort Collins held that if the water "continues to flow as it did prior to the <br />renovation," then the dam would not control the water and the claim would have been an <br />illegal instream flow. Id. at 932. The rock formations at issue here do not dam or <br />impound water. They allow the water to continue to flow as it did prior to their <br />construction except for moments and places where the water is deflected from the new <br />and existing boulders. <br />Second, the factual situation in Fort Collins is substantially different. The <br />structures before the Supreme Court in Fort Collins bear no resemblance to those before <br />this Court in these matters. In Fort Collins the Court considered an application for a <br />water right for "a concrete dam across the Poudre River." (Decree). The boat chute and <br />fish ladder were incorporated into this concrete dam (the "Power Dam "), and operated by <br />diverting the previously impounded water through a narrow channel in the dam. The <br />Power Dam impounded water, which water was then diverted into a boat chute and fish <br />ladder which controlled the water only at "low flows" Id., at 932. The Fort Collins <br />Power Dam was specifically limited to lower flows because it would have overtopped at <br />higher flows. Further, water overtops the boulder formations (except to the extent that <br />the boulder formations are the banks of the stream) at higher flows. <br />There are no dams at issue in these matters. There are no "chutes" or "ladders" <br />incorporated into such dams. There is no impoundment of water, or direction of a <br />defined amount of that previously impounded water into a narrow channel. In holding <br />that the Power Dam controlled water, the Supreme Court did discuss the attached boat <br />chute and fish ladder. The Court noted that that boat chute and fish ladders "are <br />structures which concentrate the flow of water" and that a boat chute and fish ladder <br />"may qualify as a structure or device which controls water in its natural course or <br />location." Id. at 932. The applicants argue that the boulder formations are similar to the <br />boat chute and fish ladders, and for that reason should be held to be "control structures." <br />As noted, however, the boat chute and fish ladder in City of Fort Collins were <br />attached to a dam, and diverted water previously impounded by that dam into a <br />narrow channel. The boulder formations do not divert a set amount of water that <br />previously had been impounded. Nor is the water diverted through a narrow channel. <br />Water flows over the boulder formations within the banks of the stream channel <br />itself. Simply put, the matters now before the Court simply are not the matters <br />3 The Court in City of Fort Collins also noted that the boat chute and fish ladder "beneficially <br />use" water if they function as designed, Id. at 932. The applicants may attempt to argue that the <br />