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<br />001357 <br /> <br />Page 2 <br /> <br />Under the Compact, "consumptive use" means diversions of water <br />from the mainstream of the Colorado River, including water drawn <br />from the mainstream by underground pumping, less return flow to <br />the river. <br /> <br />This would be accurate if it referred to consumptive use as defined under the Arizona v. <br />California decree. The Compact does not defme consumptive use, and since the decree expressly <br />states (at paragraph VII1.D) that it does not affect any issue of interpretation of the Compact, the <br />decree definition may not be applied to the Compact. . ~ <br /> <br />This leads directly to the main legal issue presented by this rule. As I understand its operation, a <br />"Storing State" (presumptively Arizona) would divert water for which it has no immediate need, <br />under either its basic apportionment or surplus apportionment. The water would either be <br />directly stored (usually through groundwater recharge projects) or stored by exchange (users who <br />normally would take groundwater would take the Colorado River water instead, creating a <br />storage credit in the aquifer from which they would otherwise pump). The other party to the <br />agreement, in the Consuming State, would redeem this storage credit at a later time. Entities in <br />the Storing State that normally would take Colorado River water would instead take the stored <br />groundwater, and the resulting "intentionally created unused apportionment" would be diverted <br />to the entity in the Consuming State and accounted as any other use of unused apportionment. <br />The "purpose" section states that: <br /> <br />The proposed rule is based on the understanding that this type of <br />offstream storage [to be recovered for use at a later date] is a <br />beneficial consumptive use of Colorado River water. <br /> <br /> <br />However, there is <br />.. <br /> <br />-~Ir \S <br /> <br />a a uses. ' This is not an entirely new issue, and as far as I am aware Colorado has not ~~ <br />objected to the small-scale demonstration ro'ects which have stored Lower Basin Colorado P $~ <br />River water off-stream for later use. . tJ. <br />the Board should be aware of this Issue. <br /> <br /> <br />As a practical matter, the impact may not be great. The rule doesn't authorize any greater Lower <br />Basin diversions than would occur in the absence of the rule. As the environmental assessment <br />acknowledges, the rule may mean that individual Lower Basin water users which have relied on <br />other states' unused apportionments will experience a reduced supply. However, as the EA also <br />notes, during surplus years the impacts would be less. Accordingly, the rule may lead to even <br />greater pressure for declarations of surplus. Because Arizona is already making major efforts to <br />use its full apportionment, I'm not sure the rule will really make that much difference. <br /> <br />Aside from that, I didn't see much else of concern. The background section slightly overstates <br />the Secretary's authority as water master. However, the rule expressly disclaims any intent to <br />