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A. Water must be physically diverted in Colorado to <br />constitute diversion, capture, possession and control <br />To obtain a water right under Colorado law, the Applicant must show that its placement <br />of rocks within the stream constitutes both a diversion within the meaning of section 37 -92- <br />103(7), C.R.S. (2001) and capture, possession and control within the meaning of section 37-92 - <br />305(9)(a), C.R.S. (2001); Empire Lodge Homeowners' Ass'n v. Moyer 39 P.3d 1139, 1148 <br />(Colo. 2001). The Applicant's rock arrangements do not constitute diversion, capture, <br />possession or control as those terms have been defined by this Court and the Legislature because <br />the water flows freely, bank to bank, with the addition of waves. <br />The Constitution provides that the right to divert the unappropriated waters of any <br />natural stream to beneficial uses shall never be denied. Colo. Const., art. XVI, § 6 (emphasis <br />added). "The reason and thrust for this provision was to negate any thought that Colorado would <br />follow the riparian doctrine," because the maintenance of the flow of a stream is a riparian right, <br />which is completely inconsistent with the doctrine of prior appropriation. CWCB 594 P.2d at <br />573; cj Schodde v. Twin Falls Land and Water Co. 224 U.S. 107, 32 S.Ct. 470, 56 L.Ed. 686 <br />(1912). <br />This Court, in conjunction with the Legislature, has always been able to expand Colorado <br />water law to encompass new innovations and required uses, but this application would expand <br />Colorado water law to the extreme. This Court has expanded the definition of diversion to <br />include darns and "other contrivances " and storage within the streambed; however, it has still <br />2 "If a dam or contrivance of any kind will suffice to -turn water from the stream and moisten the <br />lands sought to be cultivated, it is sufficient, though no ditch is needed or constructed." Thomas <br />v. Guiraud 6 Colo. 530 (1883). <br />7 <br />