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As noted, the State strongly disagrees with the applicants' contention that their <br />boulder formations are no different from the Power Dam in Fort Collins Even if these <br />on- channel rock formations were similar, this Court should not expand the Fort Collins <br />holding to allow applicants to use boulder formations to appropriate amounts of water <br />vastly in excess of that amount allowed for the Power Dam. <br />Significantly, the Supreme Court emphasized that there was control only at low <br />flows. The Court held that "the chute and ladder control and direct water only at <br />unspecified low flows." Id. at 932 (emphasis not added). The boat chute controlled <br />water only at low flows where previously impounded water was directed into a narrow <br />channel. At higher flows, the dam would be overtopped. The Court did not find that the <br />boat chute controlled water at higher flows, where water flowed over the top of the Power <br />Dam, or over the top of the boat chute, or where water could not be directed into a narrow <br />channel. Because the Fort Collins Power Dam would have overtopped at higher flows, <br />the water right was specifically limited to low flows only. Here, the applicants are <br />claiming that the boulders control water not merely at low flows, but at flows equal to, or <br />close to, the maximum stream flow within Gore Creek and the Blue River. These are <br />flows at which the water is not diverted into any channel, but rather are flows unimpeded <br />between the stream banks. Nothing in Fort Collins justifies a finding that the boulder <br />formations control water at such flows. <br />II. THE APPLICANTS CANNOT ESTABLISH THE WATERS <br />CLAIMED ARE BENEFICIALLY USED UNDER COLORADO WATER <br />LAW. <br />The applicants contend that the traditional concepts of beneficial use, duty of <br />water, and waste, which would otherwise prevent or limit the amounts and times of <br />the applicants' proposed appropriations, should not apply to their applications. Under <br />Colorado law, the applicants must be limited to a reasonable amount of water. <br />A. The plain language of section 37 -92- 103(4) and case law on <br />beneficial use require an appropriator to appropriate only that amount of water <br />that is reasonable and appropriate. <br />"Beneficial use" is defined as "that amount of water that is reasonable and <br />appropriate under reasonably efficient practices to accomplish without waste the <br />purpose for which the appropriation is lawfully made ". C.R.S. § 37 -92- 103(4) (2001) <br />(emphasis added). Beneficial use is the measure and limit of a water right in <br />Colorado. It is "the policy of the state of Colorado... to maximize the beneficial use <br />of all of the waters of this state" and to prohibit waste. Consolidated Home Supply <br />Ditch and Reservoir Co. v. Town of Berthoud 896 P.2d 260, 271 (Colo. 1995). A <br />water court should not allow "usage that is unrealistically high, and undermines the <br />policy of maximum beneficial use of water." Matter of Bd. of County Comm'rs of <br />County of .Arapahoe, 891 P.2d 952, 962 (Colo. 1995). Thus, a water user "is not <br />entitled to command the whole or a substantial flow of the stream merely to facilitate <br />