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available for diversion under the downstream right, would not be <br />stackable. <br />3. The Conservancy has waived any right of reversionary <br />ownership under the agreement in exchange for some fairly <br />explicit provisions, which the Conservancy could enforce <br />contractually, obligating the Conservation Board to call and <br />defend the instream water right. The Conservation Board also <br />cannot compromise any enforcement proceeding without The Nature <br />Conservancy's consent. <br />4. The agreement sets up a two stage procedure. In the <br />first stage the Conservation Board will evaluate whether at least <br />the 300 cfs water right is needed to preserve the environment to <br />a reasonable degree and is therefore not excessive under the <br />standard set by statute. But because the Conservancy only has a <br />300 cfs water right to offer, the agreement does not require that <br />the Conservation Board also determine whether this 300 cfs is the <br />most that would ever be reasonable for instream use in the Black <br />Canyon. It could become very difficult to match up purchased or <br />donated water rights to instream needs unless the Board can take <br />this kind of incremental approach. <br />5. Also as part of the first stage of the agreement the <br />Conservation Board will evaluate the impact which perfecting the <br />conditional water right for instream use will have on upstream <br />14