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intends to use the waters for beneficial purpose and actually applies them to that use. "); Colo. <br />River Water Conserv. Dist. v. Colo. Water Conserv. Bd., 197 Colo. 469, 475, 594 P.2d 570, 574 <br />(1979) (explaining that the line of cases within which removal of water from the stream was <br />required to effectuate a diversion are distinguishable on their facts) [hereinafter CRWCD]. <br />This long line of precedent culminates in City of Thornton v. City of Fort Collins, 830 P.2d <br />915 (Colo. 1992), which applied Section 103(7) and the above case law. Id. at 929 -31. In Fort <br />Collins, the Court considered whether in- channel structures constituted "diversions" for purposes <br />of Section 103(7). In so doing, it held that a "boat chute and fish ladder" built into an existing <br />dam were structures that control and "concentrate the flow of water to serve their intended <br />purpose." Id. at 932. <br />In discussing the control exerted by the boat chute and fish ladder, this Court held that to <br />satisfy the control requirement, a structure must "function as designed." This Court stated: <br />The water court's reasoning that the boat chute and the fish ladder at the renovated <br />Power Darn do not add any control to the river or that the river continues to flow as it <br />did prior to the renovation of the Power Dam suggests that the chute and the ladder in <br />fact fail to function as designed. .. . <br />However, there was no evidence presented at trial that the chute and the ladder have <br />failed to function as designed.... That the chute and the ladder function as designed <br />means that the water can be controlled such as to be put to recreational and wildlife <br />uses, both beneficial uses under the Act. <br />Id. (emphasis added). The Court also stated that, for purposes of a diversion, "to control water <br />within its natural course or location means that the appropriator exercises control over the water <br />at least to the extent that the water continues to be put to beneficial use by the appropriator." Id. <br />at 931. In other words, the best evidence that the boat chute and fish ladder exerted the requisite <br />degree of control is that the structures "function as designed" to achieve the intended beneficial <br />Sb1546 -12- <br />