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White Rock Reservoir Company ( "Company ") which acknowledges the <br />Company's senior right of exchange for 100 c.f.s. decreed on <br />June 21, 1926, and which provides that Boulder has the right to <br />substitute its own exchange on Boulder Creek. <br />a. The Board hereby acknowledges that Boulder may attempt <br />to by -pass water otherwise divertible under its <br />appropriative right of exchange or its stipulation with the <br />Company and leave it in the stream channel for delivery to <br />a point of diversion downstream from the specified reach, <br />in which event stream flows in the specified reach. would be <br />greater than would otherwise be the case. <br />b. Boulder hereby acknowledges that under this agreement <br />such by- passes will not constitute instream flow water <br />rights and will not be legally cognizable and <br />admjnisterable as such, but rather will become available to <br />the Board's 1974 right to the extent that it is in <br />priority. <br />c. The Board shall have no obligations or responsibilities <br />with respect to such by- passes. Boulder shall bear all <br />risks and costs associated with making such by- passes and <br />with endeavoring to prevent them from being diverted from <br />the specified reach. <br />BOULDER'S RIGHT TO USE BELOW THE SPECIFIED REACH <br />6. Below the downstream terminus of the specified reach <br />(i.e., below 75th Street), any legally permissible right to <br />use, re. -use or lease the water. water rights. or interests in <br />water acquired by the Board pursuant -to this Agreement shall <br />belong exclusively to Boulder. <br />WATER COURT PROCEEDINGS <br />7. The Board and Boulder, as co- applicants, will file an <br />application with the water court to allow as an alternate use <br />of the conveyed water rights listed in paragraph 1 their use . <br />.exclusively by the Board for instream flows in the specified <br />reach to achieve flows not exceeding c.f.s. The parties <br />agree that Boulder may seek the alternate right to use the <br />conveyed water rights for irrigation purposes downstream of the <br />specified reach, recognizing that such downstream use will <br />require special proof by Boulder of non-injury. <br />8. The Board and Boulder, as co- applicants, will file an <br />application with the water court to allow as an alternate use <br />of the storage rights for the reservoirs covered by paragraph 4 <br />the assignment of its right to use water to the Board for use <br />exclusively by the Board for instream flows in the specified <br />reach to achieve flows not exceeding 15 c.f.s. <br />-4 -- <br />