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• Board Meeting Date: 9/18/2007
• Description: WSP Section - Navajo-Gallup Water Supply Project Support
• Board Meetings - Doc Type: Memo

NGWSP, therefore, could and should be satisfied from Arizona's 50,000 AF
apportionment of Upper Colorado River Basin water. Second, Arizona's position on this
issue is contrary to language in Section 303(d) of the 1968 Colorado River Basin Project
Act, which provides: "If [consumptive water uses] in Arizona. . . [are] served by water
diverted from the drainage area of the Colorado River system above Lee Ferry. . . such
consumptive use of water shall be part of the fifty thousand acre feet per annum
apportioned to the State of Arizona by article I1(a) of the Upper Colorado River Basin
Compact." Arizona agreed to this language at the time the Act was passed. FUlihennore,
the language in the 1968 Act was referenced in the April 29, 2003 resolution of the Upper
Colorado River Commission in support of terms that would allow Upper Colorado River
Basin water to be used in the Lower Basin. Third, Arizona's position appears
inconsistent with both the Colorado River Compact and the decree of the United States
Supreme Court in Arizona v. California. A compact cannot be modified without the
consent of the compacting states; and Congressional modification of a Supreme Court
decree may violate separation of powers. Fourth, Arizona is attempting to insert
provisions to cover a possible future agreement between it and the Navajo Nation. This
vital legislation should not be sidetracked by Arizona's attempt to insert peripheral and
divisive issues. For all these reasons, Arizona's requested changes must be rejected.

With respect to the protections requested of New Mexico by the SWCD, New
Mexico has consented to most of those conditions in its letter to Scott Balcomb and Rod
Kuharich dated June 6,2006. Those conditions include continued support for the San
Juan River Basin Recovery Implementation Program (SJRIP) and the goals, objectives
and actions presently associated with the SJRIP, including the reliance on the SJRIP to
act as the "reasonable and pmdent" alternative for compliance with certain provisions of
the Endangered Species Act. New Mexico has also agreed to support the Long Hollow
Reservoir Project located in the La Plata River Basin; to discuss potential modifications
to the minimum bypass flows associated with the San Juan-Chama Project; and to
continue to work through the Seven Basin States process to identify and help bring to
fmition water augmentation opportunities throughout the Colorado River Basin,
including weather modification. The final request of the SWCD is the inclusion of
language to protect Colorado's equitable share in San Juan basin water. This can be
accomplished through a Programmatic Biological Opinion or similar mechanism that
assures the protection of all existing uses in both states and would allow for up to an
additional 60,000 AF of new water development to be shared equally between the two
states.
However, the U.S. Fish and Wildlife Service has stated that they do not believe a
Programmatic Biological Opinion is justified at this time. We disagree and are therefore
requesting that the following language be included in the legislation unless another
method of mandating the U.S. Fish and Wildlife Service to perform a Programmatic
Biological Opinion on all existing uses and 60,000 AF of new uses can be found:

Any additional depletions to which New Mexico may be entitled under the 2007
Hydrologic Determination asprovidedfor herein shall not il?jure existing uses or impair
the development qffilfure benefIcial uses (?fwater within either the State qfColorado or
the State (?fNew Mexico, the use qfwhich is within there re~]Jective apportionments made