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rights, and the right of the public to appropriate a water right "by a structure or device ... which <br />controls water within its natural watercourse." Id. at 930 -31. Simply stated, "[t]he exclusive <br />authority vested in the CWCB to appropriate minimum stream flows does not detract from the <br />right to put to beneficial use unappropriated waters by removal or control." Id. at 930. Thus, the <br />State's argument for why Fort Collins is no longer good law is based on the same argument <br />already raised, litigated, and rejected in Fort Collins. <br />iii. The Fort Collins Decision is Not a Narrow Exception Limited to Its Facts <br />As noted above, the Fort Collins decision simply reflects one application of the existing <br />statutory language that allows an appropriation when there has been in- channel control by some <br />structure or device. It is not a narrow exception to the law as suggested by the State. <br />First, this Court found the boat chute and fish ladder to be the controlling structure, not the <br />dam in which those structures were located. Id. at 932 ( "A chute or ladder therefore may qualify <br />as a `structure or device' which controls water in its natural course or location under section 37- <br />92- 103(7) "). There is no requirement that there be a pre- existing dam or that Fort Collins is <br />limited to a small notch in a dam. That would also be inconsistent with Section 103(7), which <br />provides for in- channel control by some "structure or device" in addition to a "reservoir." § 37- <br />92- 103(7). Second, the beneficial use was not limited to or decreed for "safe passage" as. the <br />State argues, but for "recreational and wildlife uses" including "kayaks and inner tubes." Fort <br />Collins, 830 P.2d at 932. Lastly, this Court did not limit its holding to some "unspecified low <br />flow" as the State implies. The reference to "unspecified low flow" was simply part of the Water <br />Court's holding, and that holding was reversed. Id. <br />The fallacy of the State's control argument is that it could be overcome by constructing the <br />Park parallel to the stream, and then diverting up to 500 c.f.s. of the river into that channel. <br />Sb 1546 -17- <br />