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answer the legislature's interrogatories to determine the constitutionality of <br />appropriations without diversions. (Exhibit A, pp. 626 -627). <br />Nonetheless, the legislature concurrently granted the CWCB the right to <br />appropriate instream flows and removed the diversion requirement from the definition of <br />"appropriation" to permit the CWCB to appropriate instream flows. See e.g. Colorado <br />Water Conservation Bd. 594 P.2d at 574; (Exhibit B, pp. 1 -5); § 148 -21 -3, C.R.S. <br />(1973). In finding Senate Bill 97 constitutional, the Court emphasized that it was "not <br />hereby causing any erosion of the many opinions of this court, some of which are cited <br />above, holding that a diversion is an essential element of the water appropriations <br />involved in those cases. The many cases are distinguishable." Id. (emphasis added). <br />Thus, the Court did not overrule the diversion requirements set forth in Guiraud Luthe <br />Rocky Mountain Water and Miller or as understood by the General Assembly. <br />Consequently, while the CWCB could appropriate instream flows, other appropriators <br />were still subject to the long- standing diversion requirement or the requirement that the <br />water be controlled in its natural course or location by storage in the streambed for later <br />diversion. <br />In 1992, the Court affirmed a water right decreed to the City of Fort Collins for <br />two dams used for recreational and piscatorial uses. Fort Collins 830 P.2d 915. The <br />Power Dam boat chute, analogous to the Applicants Course, narrowly channeled the <br />river to allow boaters to pass safely through a previously unnavigable stretch of the river. <br />3 The Nature Dam diverted the Poudre River water from a more recent channel back <br />into its historic channel, and, but for it, the river would run in a different course. Fort <br />Collins 830 P.2d at 929. The Power Dam, on the other hand, controlled water within <br />the course by means of a dam and boat chute. Thus, this brief will only refer to the <br />Power Dam boat chute when discussing the structure or dam of Fort Collins <br />