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§ 37- 92- 305(9)(b), 10 C.R.S. (2001) establishes the criteria for the recognition of a <br />conditional water right. <br />[N] o claim for a conditional water right maybe recognized or decree therefor granted <br />except to the extent that it is established that the waters can be and will be diverted. <br />stored, or otherwise captured possessed and controlled and will be beneficially used <br />and that the project can and will be completed with diligence and within a reasonable <br />time. (Emphasis added.) <br />Thus, the waters within Golden's Whitewater Park must be (i) diverted, stored, or otherwise <br />captured, possessed and controlled and (ii) beneficially used. <br />The term "diversion" has, in turn, been defined by the legislature so as to include "removing <br />water from its natural course or location, or controlling water in its natural course or location, by <br />means of a ditch, canal, flume, reservoir, bypass, pipeline, conduit, well, pump, or other structural <br />device." (Emphasis added.) § 37 -92- 103(7), 10 C.R.S. (2001). `Beneficial use" is defined as: <br />The use of that amount of water that is reasonable and appropriate under reasonably <br />efficient practices to accomplish without waste, the purpose for which the <br />appropriation is lawfully made and, without limiting the generality of the foregoing, <br />includes the impoundment of water for recreational purposes, including fishery or <br />wildlife.... (Emphasis added.) <br />§ 37 -92- 103(4), 10 C.R.S. (20.01). Therefore, in order for the Golden decree to be found valid, the <br />evidence must demonstrate that: (i) Golden will control water in its natural course or location by <br />means of a structure or device as was the case in Fort Collins, and (ii) the amount sought by Golden <br />C:\DATATifher \Golden AppeahFull Brief 2 -7 -02 glmwpd <br />Febmary 7, 2002 (1:30pm) 5 <br />