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__�Dincorporates Breckenridge Brief § V.C. herein and provides the following summary. <br />L "Diversion" May Occur by In- Channel Control of Water and Control Occurs <br />When Structures Function as Designed <br />The term "diversion" is defined as "controlling water in its natural course or location, by <br />means of a ... reservoir ... or other structure or device." C.R.S. § 37 -92- 103(7) (2000) <br />(emphasis added). Section 37 -92- 103(7) ( "Section 103(7) "), on its face, allows for a statutory <br />diversion by exerting control over the water in- channel by some structure or device other than a <br />reservoir or impoundment. Thus, removing water from the stream is not the only way to <br />accomplish a diversion in Colorado. Section 103(7) is consistent with long- standing case law. <br />Se_Se_ e e.g. Thomas v. Guiraud, 6 Colo. 530, 533 (1883); Larimer Co. Reservoir Co. v. Luthe, 9 P. <br />794, 796 (Colo. 1886); Genoa v. Westfall, 349 P.2d 370, 378 (Colo. 1960); Colo. River Water <br />Conserv. Dist. v. Colo. Water Conserv. Bd., 594 P.2d 570, 574 (Colo. 1979). <br />This long line of precedent was cited and applied by this Court in determining whether in- <br />channel structures constituted a statutory "diversion." City of Thornton v. City of Fort Collins, <br />830 P.2d 915, 929 -32 (Colo. 1992). Therein, this Court held that a "boat chute and fish ladder" <br />built into an existing dam were structures that control and "concentrate the flow of water to serve <br />their intended purpose" consistent with Section 103(7). Id. at 932. In discussing the control <br />exerted by the boat chute and fish ladder, this Court stated: <br />The water court's reasoning that the boat chute and the fish ladder at the renovated <br />Power Dam 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 />Id. (emphasis added). In short, the best evidence that the boat chute and fish ladder exerted the <br />requisite degree of in- channel control is that the structures "function as designed" to achieve the <br />intended beneficial use. <br />Sb 1549 -11- <br />