2012-11-02_REVISION - M1984094 (3)

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Case No. 2002CW389 Page 16 of 28 Spinney Mountain Reservoir, by bypass of the Sessions Ditch consumptive use water that is legally and physically available, by release and /or direct flow credit for the MMRC water (upon confirmation by the Water Court of the availability of the MMRC water as an augmentation water source), and by exchange using all or any of the water sources listed in Paragraph 6, as those sources may be amended pursuant to paragraph 29. C. Instream flow water rights. A list of instream flow water rights held by the CWCB within the Service Area is attached as EXHIBIT E. If the CWCB places a call on a decreed instream flow reach that would otherwise result in the curtailment of a Participating Diversion, Applicants will augment the out -of- priority depletions in time, place and amount to the extent necessary to prevent injury to the instream flows by whatever means available at the time of the call, including but not limited to trucking replacement water to be delivered to the affected reach or by releasing replacement water from any source available to the Districts at the time of the call and by whichever means the Districts use, so long as the instream flow is protected. Pursuant to §37- 92- 102(3)(b), C.R.S., a CWCB call, as referenced herein, shall only affect the Participating Diversion's out -of- priority diversions that were not being used or were not in existence prior to the date of appropriation of the relevant CWCB instream flow right being called. Any such Participating Diversion must be authorized pursuant to paragraph 8(C) of this decree. This provision shall be subject to the following express terms and conditions: 1. The measuring point for any instream flow water right call shall be below a Participating Diversion's actual diversion point for surface diversion or point of impact on the stream for groundwater diversions. 2. The CWCB call must be recognized and administered by the Division Engineer. 3. Applicants' replacement obligation within a given instream flow reach shall be limited to the out -of- priority depletion attributable to a Participating Diversion located in that reach. In the event a Participating Diversion is located upstream of a measuring point for an instream flow water right and the return flows from such Participating Diversion return to the stream below such measuring point, the Districts shall make replacements of the diversion at a point at or upstream of such diversion to the extent necessary to prevent injury from any source available to the Districts or curtail the subject Participating Diversion.