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7. Golden is entitled to a water right quantified according to instantaneous peak <br />flows as long as the other elements of appropriation are present. <br />g. The water rights sought by Golden are capable of administration and the USGS <br />gage at Golden is sufficient for use for -this purpose. Notwithstanding this <br />stipulated fact, the State reserves the right to request inclusion in any decree <br />entered in this case a term that recognizes that the USGS gage at Golden is not <br />under the control of the State, and that its use for day to day administration <br />cannot be deemed accurate for anything more than long term measuring issues. <br />Though, as noted above, the parties agree that the water rights can be <br />administered by the gage, the accuracy of the gage is disputed. Nothing in this <br />paragraph can be construed as an admission or assertion that either the State or <br />Golden should be responsible for a replacement gage should that become <br />necessary . <br />9. Boaters have been present on the water in the White Water Course when flows <br />have been in excess of 1000 cfs. <br />10. The parties stipulate to an appropriation date for the absolute and conditional <br />rights claimed of December 30, 1998. <br />11. Golden satisfied the elements of forming an intent and making an overt, physical <br />act constituting. the first step toward diversion and application of the claimed <br />water rights to a beneficial use and Golden has pursued the appropriation of the <br />conditional water right with diligence during the time since forming the intent <br />and taking the overt act. <br />12. Golden has satisfied the can and will elements of § 37- 92- 305(9)(b) C.R.S. <br />(2000) for the conditional portions of the application. <br />13. The legal descriptions of the control structures set forth in the application are <br />accurate. <br />14. The source for both the Whitewater Course and the Course Extension is Clear <br />Creek, a tributary to the South Platte River. <br />15. Clear Creek is generally over- appropriated. However, at times of flood and <br />heavy runoff there are periods of free river. <br />16. Mr. Thompson is an expert in the fields of water rights engineering and water <br />rights administration. <br />17. Dr. Danielson is an expert in the fields of water rights engineering and water right <br />administration. <br />-2- <br />PH0190 <br />