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<br />OO,~J3 <br /> <br />. <br /> <br />. <br /> <br />Shortage Criteria <br /> <br />In a recent Sacramento Bee article, published on April 27, 2004, the Bush <br />Administration has indicated that the Lower Division States must initiate a plan to <br />develop shortage criteria for the Colorado River Reservoir System, or risk the U.S. <br />Deparbnent of the Interior developing the criteria in their absence. Assistant Secretary <br />Bennett Raley was quoted as saying, "We need the three lower basin states to get their act <br />together and deal with shortages..." If the three states can't work out a plan, the <br />Secretary of the Interior "will have to do it" for them. A copy of this article has been <br />included in the handout material for the Board members' information. <br /> <br />Colorado River Environmental Activities <br /> <br />Lower Colorado River Multi-Species Conservation Program (LCR MSCP) <br /> <br />On April 15, 2004, the non-federal participants in the LCR MSCP process <br />submitted the agency review drafts of the Habitat Conservation Plan (HCP) and the <br />Environmental Impact StatementlReport (EIS/R) and an application for the Endangered <br />Species Act Section 10(a)(l)(B) incidental take authorization to the USFWS. The draft <br />HCP, EIS/R and Permit Application were accompanied by a cover letter from the non- <br />federal partners to USFWS Director, Steve Williams. Concurrent with the submittal of <br />the HCP and EIS/R, Reclamation submitted the agency review draft of the Biological <br />Assessment (BA). Included in the Board folder is a copy of the letter to Director <br />WilIiams for your information. <br /> <br />Regarding resolution of the outstanding issues related to the LCR MSCP, there is <br />nothing new to report. A meeting among the federal and non-federal principals is <br />scheduled for May 12,2004, to continue the discussions and negotiations. Generally, the <br />outstanding issues remaining between the federal and non-federal participants include the <br />following: (I) the proposed 5-year approach to compliance as contained in the most- <br />recent non-federal proposal; (2) the cost-sharing ratio (i.e., non-federal 80/20, and federal <br />SO/50); (3) reimbursibility and no regulatory takings issue (i.e., if water or power is taken <br />because of environmental compliance, it would be compensated); (4) no money damages <br />(i.e., the government will not agree to no money damages if the contract is abrogated); <br />and (5) issues related to the United States VS. Winstar (518 U.S. 839) decision from the <br />United States Supreme Court in 1996 (i.e., related to contractual obligations and <br />liabilities by parties to an agreement in light of potential future changes in laws and <br />statutes). <br /> <br />Last month I reported that the USFWS had released a memorandum opinion that <br />indicated that it could not issue a Section JO(a)(I)(B) incidental take authorization permit <br />to the California LCR MSCP participants related to any of the California Fully Protected <br />Species (i.e., razorback sucker, Yuma clapper rail, and California black rail) if the <br />California Deparbnent of Fish and Game (CDFG) could not also issue incidental take <br />authorization under the Fish and Game Code. I am pleased to report that CDFG <br /> <br />'5 <br />