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water is concentrated through a notch in the dam for boating (and a fish ladder). (Exhibit <br />E). <br />Unlike the Fort Collins structure that had a chute or cut into a portion of it for <br />passage and safe navigability, the main purpose of the courses at issue is to create <br />whitewater features for recreation. A primary difference between a boat chute and a <br />whitewater course is that a boat chute allows safe passage past an obstruction, while <br />whitewater courses create whitewater features. Although course structures may influence <br />the hydraulics or direction of the flow of water, they do not "control" the water. At <br />higher flows the rivers at issue run uncontrolled in their natural course and clearly do not <br />control the water under the holding of Fort Collins Id. <br />Under the applicant's theory, any structure that changes the pattern of the water in <br />any way, including a boulder in the stream, would constitute "control." Placing devices <br />in a stream to create waves is simply not "control" within the meaning of section 37 -92- <br />103(7) or Fort Collins Further, while the Court did not address the issue of capture, <br />possession and control or impoundment in Fort Collins the Fort Collins boat chute was <br />incorporated into a dam that clearly captured, possessed, controlled and impounded the <br />water immediately prior to its flowing through a notch in the dam. <br />V. THE APPLICANT'S APPROPRIATION DOES NOT FIT WITHIN THE <br />STATUTORY DEFINITION OF BENEFICIAL USE <br />1. Section 37 -92- 103(4) requires "impoundment" for recreational uses <br />