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C. AN EXPANSIVE READING OF THE "CONTROL" AND BENEFICIAL USE <br />REQUIREMENTS WOULD HAVE SIGNIFICANT ADVERSE IMPACTS. <br />If this court were to endorse the expansive reading of the Fort Collins decision as adopted <br />by the Water Court, so as to find that the installation of the Golden structures resulted in the requisite <br />level of control to effectuate a lawful and efficient diversion for beneficial uses without waste, <br />significant adverse consequences may follow therefrom which would undermine the ability of <br />Colorado's water users to place water to beneficial use at the time and place of need.' <br />Although, Golden may claim that it spent over $200,000 on its course, there exists neither <br />any "level of investment" criteria nor any benchmark as to how elaborate the structures need be in <br />order to effectuate the appropriation. A few well - placed boulders could potentially be adequate. In <br />fact, the Water Court found that each of the Golden structures "concentrate and control the flow of <br />water to create waves and jets of water, self - scouring pools, hydraulic holes, large changes in current <br />direction, and other whitewater features ... " Water Court Decree at page 5.3 Certainly this is not <br />the type of "control" either contemplated by the legislature in codifying the "diversion" requirement <br />or endorsed by this court in the Fort Collins decision. See People v. Hickman, 988 P.2d 628, 634 <br />As further discussed in Subsection D below, such a holding would be contrary to the <br />doctrine of "maximum beneficial use" of state waters. <br />' A study of simple hydraulics confirms that a boulder placed in the river would, at <br />different flow levels, be sufficient to create all of the aforementioned whitewater features. <br />Golden's expert, Jeris Danielson, testified that any boulder in a stream controls the flow of water <br />and that moving a boulder in the stream constitutes control. Record, volume 6 page 42; volume <br />8, p. 150. <br />C:\DATA\PifheI \Golden Appeal\Full Brief 2 -7 -02 glm.wpd <br />February 7, 2002 (1:30pm) <br />