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turned what was a uniform, even gradient, nondescript channel of Gore Creek, (v.XI, p.4,1.10- <br />12), into a world class whitewater park that has already hosted international competitions and <br />generated millions of dollars for the local economy. (See App'x D, selected photographs of Gore <br />Creek before and after construction). <br />3. The State and Northern's Arguments Ignore Undisputed Facts and Law <br />In response to the Water Court's finding of control, the State and Northern raise a number <br />of unsupported factual and legal arguments. These arguments include that: (i) water must be <br />physically removed from the stream to constitute a diversion; (ii) the District claims an in- stream <br />flow or riparian right that is within the CWCB's exclusive domain under Senate Bill 87 -212 <br />( "SB 212 "); (iii) Fort Collins should be limited to its facts; (iv) control should be limited to safe <br />passage; and (v) water continues to flow as it did prior to course construction. The District relies <br />upon and incorporates herein Breckenridge Brief § V.C.3. responding to these arguments. <br />The Breckenridge Brief cites testimony by Alan Martellaro, the Division 5 Engineer, in <br />responding to the aforementioned arguments. Mr. Martellaro also testified in the subject case. <br />As in the Breckenridge case, Mr. Martellaro's opinion that the structures did not control water <br />was "just based on law." (v.XII, p.38,1.7-13). Yet, on cross - examination, Mr. Martellaro <br />testified the control of water in a natural course by means of a structure or device does not <br />constitute a diversion. (v.XII, p.35,1.14- p.36,1.11). Thus, in rendering his opinion, Mr. <br />Martellaro ignored the statutory definition of "diversion" in Section 103(7). Notwithstanding, <br />Mr. Martellaro conceded that the structures physically divert water in that he admitted they <br />change the hydraulics of the stream, deflect the flow in different directions, move water back and <br />forth across the stream, raise the water surface profile, and change the water's velocity. (v.XII, <br />pp.33 -34). Northern offered no witnesses on this or any other fact at issue. <br />Sb1549 -13- <br />