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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 cites four seminal cases in support of its argument that its recreational <br />instream flow constitutes a diversion. (AB, p.11). In contrast, all cited cases rule that an <br />appropriator is required to physically divert water from the channel (except for the CWCB). . <br />In Thomas v. Guiraud, 6 Colo. 530, 533 (1883), this Court held that no ditch was required to <br />divert water, but only if there was "a dam or contrivance" that would "turn water from the <br />stream" for irrigation. In Larimer Co. v. Luthe, 9 P. 794, 796 (Colo. 1886), this Court held <br />that "a diversion must of necessity take place...." And, in Genoa v. Westfall, 349 P.2d 370, <br />373 (Colo. 1960), the water was diverted into a dam with watering troughs and curbed with <br />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 by <br />allowing the CWCB to obtain the first instream flow. In citing this case, Appellee fails to <br />address the meaning of the Court's specific emphasis that it was "not hereby causing any <br />erosion of the many opinions of this court ... holding that a diversion is an essential <br />element of the water appropriation...." CWCB, 594 P.2d at 575 (emphasis added). <br />