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control the water and the claim would have been an instream flow. Prior to SB 216, to <br />effectuate control, a structure was required to change the flow of water, id. at 932, and not <br />merely create wave features. The Fort Collins Power Dam structure captured, possessed and <br />controlled the water and clearly changed the flow of the river significantly. (Exhibit D) Here, in <br />contrast, the water flows freely, bank to bank, over and through rocks within an instream flow. <br />(Exhibit E - Photographs of the Breckenridge Course flowing freely bank to bank). <br />More importantly, this Court held that "the chute and the ladder control and direct river <br />water only at unspecified low flows in the river." Fort Collins, 830 P.2d at 932 (emphasis in <br />original). The Fort Collins Court never sanctioned claims of virtually the entire hydrograph, and <br />thus, the Fort Collins Power Dam water appropriation is for 30 c.f.s. (Exhibit Q. Here, the <br />water court went far beyond Fort Collins to allow the Applicant to obtain the maximum amount <br />of water. <br />The water court in this case expanded "capture, possession and control" from a traditional <br />dam impoundment structure that captured, possessed and controlled the water only at low flows <br />by directing the flows through a narrow notch in the dam, to rock arrangements whose only <br />purpose is to shape the. water surface to create whitewater features at the maximum flows <br />available. (v. X, p. 117; Exhibits C & D). Under the water court's holding_, any rock that <br />changes the pattern of the water in any way would constitute diversion, capture, possession and <br />6 "The water court's reasoning that the boat chute and the fish ladder at the renovated Power <br />Dam do not add any control to the river or that the river continues to flow as it did prior to the <br />renovation of the Power Dam suggests that the chute and ladder in fact fail to function as <br />designed.... If this is the case, then the waters claimed at the Power Dam are not being put to <br />beneficial use...." Fort Collins 830 P.2d at 932. <br />15 <br />