Laserfiche WebLink
exercise "any control ... or that the river continues to flow as it did" prior to construction <br />"suggests that the chute[s] ... in fact fail to function as designed." Fort Collins, 830 P.2d at 932. <br />That the Park's structures do function as designed is evidenced by the fact they turned what was <br />a uniform, nondescript channel of the Blue River (v.VIII, pp. 1-2; see also App'x B) which <br />boaters rarely, if ever, utilized before (v.VII, p.146,1.21 -24), into a whitewater park used.by <br />boaters of all abilities (v.VIII pp.28 -29, 37 -38; v.VII, p. 153,1.2 -12), used for instructional <br />classes and hosting events (v.VII, p.145,1.17 -21, p.148), and that has generated millions of <br />dollars for the Breckenridge economy. (v.VII, p.173, 1.4 -7). <br />3. The State's Arguments Ignore Undisputed Facts and Law <br />In response to the Water Court's finding of control, the State raises a number of <br />unsupported factual and legal arguments. These arguments are summarized as: (i) water must be <br />physically removed from the stream to constitute a diversion; (ii) Breckenridge claims an in- <br />stream flow right or riparian right that is within the exclusive domain of the CWCB under Senate <br />Bill 87 -212 ( "SB 212 "); (iii) Fort Collins should be limited to its facts; (iv) control should be <br />limited to safe passage; and (v) water continues to flow as it did prior to course construction. <br />i. Diversion Does NOT Require Water Removal or Impoundment <br />This appeal exists almost solely because the State refuses to accept the plain language of <br />Section 103(7) which provides that a diversion removes water from its natural course OR <br />controls water in its natural course or location by means of a structure or device. The testimony <br />of the State's sole witness on the issue of control best demonstrates its refusal to accept this plain <br />language. On cross examination, Alan Martellaro, the Division 5 Engineer, was asked whether a <br />verbatim recitation of Section 103(7) constituted a diversion: "[I]s it your opinion that the <br />control of water in a natural course by means of a structure or device that does not remove the <br />sb1546 -14- <br />