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into a reservoir or impoundment of the water for later diversion. See Colorado River Water <br />Conservation Dist. v. Colorado Water Conservation Bd., ( "CWCB "), 594 P.2d 570, 574 (Colo. <br />1979); see also, House Journal, March 19, 1973, pp. 626-627,-666, (attached as "Exhibit A" <br />to Opening Brief). <br />The first major change to the diversion requirement occurred when the CWCB was <br />granted the right to appropriate instream flows. This change in water law was enacted by the <br />Legislature, not through the water courts. Under that law, only the CWCB could obtain a <br />water right without a physical diversion of water or impoundment of water for later <br />diversion. Yet, Appellee asserts that it, along with the CWCB, may appropriate water for <br />instream. uses. <br />Appellee wrongly cites four seminal cases in support of its argument that its <br />recreational instream flow constitutes a diversion. (AB, p.11). In contrast, all cited cases <br />rule that an appropriator is required to physically divert water from the channel (except for <br />CWCB appropriations). In Thomas v. Guiraud, 6 Colo. 530, 533 (1883), this Court held that <br />no ditch was required to divert water, . but only if there was "a dam or contrivance" that <br />would "turn water from the stream" for irrigation. In Larimer Co. v. Luthe, 9 P. 794, 796 <br />(Colo. 1886), this Court held that "a diversion must of necessity take place.... And, in <br />Genoa v. Westfall, 349 P.2d 370, 373 (Colo. 1960), the water was diverted into a dam with <br />watering troughs and curbed with railroad ties and cement. <br />Finally, the Appellee cites CWCB, 594 P.2d 570 as support for its right to obtain a <br />recreational instream flow. This narrow and decisive case supported Senate Bill 73 -97, <br />