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<br />Tuesday, October OS. 1998 10:38 AM To: Peter Evans
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<br />From: James S. lochhead, Esq., (97,0) 945.4921
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<br />Page: 3 of 5
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<br />o no 2 7 rJ
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<br />rights undtlr thtl third priority. lID, SDCW A and MWD havtl rt:auhtld provisional agrtltlmtlnt on
<br />the first two elements. 'l1,e CYWDIIID/lnterior discussion~ on the third element are ongoing.
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<br />4. Another critical element of the 4.4 Plan is the adoption of interim criteria by the Secretary
<br />that will provide to MWD and SDCW A greater security of supply through the CRA than
<br />ourrently exists, during implementation of the 4.4 Plan. The MWD/SDCW A agreement is
<br />specifically conditioned on, "The promulgation and application by the Secretary of the Interior
<br />(thtl "Stlurdary") ofsurplusuritma, induding rivt:!' rtl-optlrations, that artl suffiuitlnt, l.ogtlthtlr with
<br />those other water supplies that are under the control of MWI), to assure that the (:olorado River
<br />Aqueduot ("CRA") is full at least through 2015." The six Colorado River Basin states were not
<br />involved in the development of, and are not parties to, that agreement.
<br />I
<br />5. The 1968 Colorado River Basin Project Act, ~602(a), requires the Secretary of the Interior
<br />to adopt criteria for the coordinated long-range operation of specified Colorado River System
<br />reservoirs, including Lakes Powell and Mead. Such criteria was ad.opted by the Secretary in
<br />1970, and has not been modified since, Section 602(b) authorizes the Secretary to modify the
<br />criteria "as a result of actual operating experience or unforseen circumstances, , . . to better
<br />auhit:vtl thtl purpOStlS i;lpt:uifitld in substlution (a) of this stlution, but only afitlr UOlTtlspondt:nut: with
<br />the Governors ofthe seven Colorado River Ba<;in States and aenronriate consultation with such
<br />State representatives as e~h Governor may designate. II The Criteria recognize that the Secretary
<br />may modify the Criteria "from time to time," but will sponsor a formal review of the Criteria
<br />every five years.
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<br />6. Article III of the Criteria establishes criteria for the operation of Lake Mead, including
<br />urittlria for normal, sUIl'lus and shortagt: dt:tt:rminations undt:r tht: dt:'-'Tt:t: inArizunu v. Cu/((urniu.
<br />The decree in Arizona v. California estahlishes how much water will he apportioned to each state
<br />in such oonditions. The decree also provides in Article 1I(B)(6) that the Secretary may release
<br />water apportioned to but unused in a state during any such year for consumptive use in another
<br />state.
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<br />7. There is no need or justification for the Secretary to modify the existing OperatingJJ.it~ia
<br />~o accommodate the Cali~omia.4.4 Plan. TIle existing Operating Critel:ia ~houl~ sel~ aig.~
<br />10 the event the 4.4 Plan IS not Implemented on scl1edule, and upon eXpiratIOn of the sa.
<br />iriterimcriteria. Instead of modifying the Operating Criteria, the Seoretary should adopt speoial
<br />interim criteria for releases of water from Lake Mead, as specific implementation of Article III of
<br />the Operating Criteria. The following elements should be addressed in the adoption of the special
<br />interim criteria:
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<br />No water user in the Basin, including MWD and SDCW A, can be guaranteed or
<br />assured of a firm supply for anv soeoificci nC'ri",~ 11 ny assurance or guarantee of
<br />
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