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use. As this Court held nearly 120 years ago, "[t]he true test of appropriation of water is the <br />successful application thereof to the beneficial use designed ...." Thomas, 6 Colo. at 533. <br />The legal standard is clear. An in- channel diversion exists where: (i) a structure or device; <br />(ii) controls water for a beneficial use; and (iii) functions as designed. The Water Court applied <br />this standard in determining that each of the Park structures constitutes a statutory diversion. <br />2. Undisputed Evidence Supports the Water Court's Factual Finding of Control <br />In awarding water rights to each of the Park structures, the Water Court found that: (i) "the <br />structures in the Park control, concentrate and direct the flow of water through the Park in a <br />manner that constitutes a diversion under C.R.S. § 37 -92- 103(7) (2000) "; (ii) "the structures <br />function at the optimal 500 c.f.s. level to concentrate and control the flow of water through a high <br />flow channel, to create waves and jets of water, self - scouring pools, hydraulic holes, large <br />changes in current direction, and other white -water features that are used by kayakers and other <br />boaters for recreational purposes "; (iii) the "Park design diverts and concentrates all of the Blue <br />River flow through a constructed low flow channel, rather than allowing the flow to be thinly <br />dispersed across the natural stream channel and (iv) "[a]lthough the structures were designed <br />and built to look as natural as possible, the structures completely divert and control the <br />streamflow." Decree at 4 -5. The undisputed evidence firmly supports these factual findings. <br />As discussed above, the record demonstrates that these highly- engineered structures, built <br />with over 4,250 tons (2,760 cubic yards) of imported stone and grout, divert the entire flow of the <br />river back and forth in the channel, and funnel or concentrate the claimed flows, with increased <br />velocity, through the boating channels or chutes built into the Park structures. This, in turn, <br />creates the desired whitewater features. The structures clearly exercise control over the water to <br />create the intended beneficial use. As noted in Fort Collins, to say these structures do not <br />Sb 1546 -13- <br />