BOARD00176 ‎(2)‎

• Board Meeting Date: 5/23/2007
• Description: WSP Section - Navajo-Gallup EIS and Status of Navajo Settlement Negotiations - Arizona Position
• Board Meetings - Doc Type: Memo

Agenda Item 18
May 22-23, Board Meeting
Page 3 of 10

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trigger mechanism and accounting procedure cannot injure Colorado water users should the situation
between the Navajo Tribe and US Fish and Wildlife change without re-consultation and notice to
affected parties.
d. The BO is based upon reducing other Navajo Tribal depletions if the "Presently Unused" portion of the
depletions in Table 4 becomes fully utilized. Again, this is clearly contrary to the purposes of the
SJRIP and the "Principles for Conducting Endangered Species Act Section 7 Consultations on Water
Development and Water Management Activities Affecting Endangered Fish Species in the San Juan
River Basin" developed by the SJRIP Coordination Committee and endorsed by the US Fish and
Wildlife Service. The Principles provide a process for the US Fish and Wildlife Service to follow
during the conduct of Section 7 consultations. The BO should be modified to reflect this process.

Resolution should consider the following:
. The Navajo's should have gotten a Section 7 Consultation based on the progress of the SJRIP as described in
the Principles for Consultation.
. If the depletion guarantee remains, it should be limited strictly to NIIP depletions.

Lower Basin Actions

The Lower Division States have filed objections to the Hydrologic Determination, which objections are
being considered by Reclamation, it is our understanding that those objections while still under consideration like
will not cause Reclamation to withdraw its support of the Navajo Settlement Agreement legislation and construction
of the NGWSP.

Arizona's Actions and Colorado's Concerns

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Arizona' position is that any depletion of water from the San Juan River in New Mexico that results from
the diversion of water by the NGWSP for uses within Arizona, upon completion of a settlement agreement between
the Navajo's and Arizona (approximately 6,400 AF), should be accounted for as part of the 2_8 MAF of Colorado
River water apportioned to Arizona in Article II(B)(I) of the Supreme Court Decree in Arizona v California.

Colorado has identified several concerns with Arizona's position:
1. These uses could and should be satisfied from Arizona's 50,000 AF apportionment of Upper Basin water.
2. It raises a number of questions and concerns relative to the use of tributary Colorado River water pursuant
to provisions in the Colorado River Compact and is at the very least inconsistent with the Colorado River
Compact.
3. It is contrary to provisions in previous laws that Arizona has agreed to even though those provisions were
not ultimately invoked. See "whereas" clauses in the June 2003 UCRC resolution.
4. It is contrary to the position taken by the UCRC in its June 2003 resolution.

Current Status

Currently, we continue our support of the SWWCD in addressing their concerns, in part through comments
on the Draft Environmental Impact Statement for the Navajo-Gallup Water Supply Project. Towards this end we
have requested that Reclamation extend the comment period on the DEIS to allow additional time to address these
concerns. Secondly, we are working to address the position Arizona has taken with respect to accounting for Upper
Basin water used in the Lower Basin, which position raises a number of concerns with respect to the Colorado River
Compact and is clearly contrary to the position of the UCRC regarding the matter. Lastly, Arizona's position is not
in the best interests of Colorado.

Recommendations

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Staff requests that the Board continue to indicate its support for the Navajo Settlement and for the
resolution of issues the SWWCD has raised during the development of that Settlement. Resolution of those issues
must be consistent with the conditions upon which the Board gave its approval of the Hydrologic Determination and
which conditions were also recognized as part of the UCRC acceptance of the Hydrologic Determination.

Staff further recommends that the Board indicate its objections to Arizona's position concerning the
accounting of Upper Basin water used in the Lower Basin raised during the development of the legislation