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Tuesday, October 06,1998 10:38 AM To: Peter Evans From: James S. Lochhead, ESQ., (970) 945-4921 Page: 3 of 5 OOJ271 rights undt:r tht: third priority. lID, SDCW A and MWD havt: rt:auht:d provisional agrt:t:mt:nl on the first two elemento;. 'l1,e CVWDIIID/lnterior discussions on the third element are ongoing. 4. Another critical element of the 4.4 Plan is the adoption of interim criteria by the Secretary that will provide to MWD and SDCW A greater security of supply through the CRA than currently exists, during implementation of the 4.4 Plan, The MWD/SDCW A agreement is specifically conditioned on, "The promulgation and application by the Secretary ofthe Interior (lht: "St:crt:lary") of surplus I,)rilt:ria, including rivt:r rt:-opt:ralions, lhat art: sufficit:nl, logt:tht:r wilh those other water supplies that are under the control of MWD, to a.o;sure that the Colorado River Aqueduot ("CRA") is full at least through 2015." The six Colorado River Basin states were not involved in the development of, and are not parties to, that agreement. ) 5. The 1968 Colorado River Basin Project Act, ~602(a), requires the Secretary of the Interior to adopt criteria for the coordinated long-range operation of specified Colorado River System reservoirs, including Lakes Powell and Mead. Such criteria was ad,opted by the Secretary in 1970, and has not been modified since. Scotion 602(b) authorizes the Scorctary to modifY the criteria "as a result of actual operating experience or unforseen circumstances, . . . to better achit:w tht: purpost:s !:lpt:cifit:d in subst:l.:lion (a) onhis st:l.:tion, bul only ailt:r l.:olTt:spondt:nct: with the (Jovemors ofthe seven Colorado River Ba.o;in States and a{lPronriate consultation with such State representatives as each Governor may designate." The Criteria recognize that the Secretary may modifY the Criteria "from time to time," but will sponsor a formal review of the Criteria every five years. 6. Article III of the Criteria establishes criteria for the operation of Lake Mead, including ,-,yilt:ria for normal, surplus and shortagt: ddt:J1I1inalions undt:r tht: dt:crt:t: inArizonu v. CuZ({orniu. 'l1,e decree in Arizona v. (:alifornia estahlishes how much water will he apportioned to each state in such conditions. The decree also provides in Article II(B)(6) that the Secretary may release water apportioned to but unused in a state during any such year for consumptive use in another state. 7. There is no need or justification for the Secretary to modifY the existing Operating C 't~.ria to accommodate the Califomia 4.4 Plan. TIle existing Operating Criteria should sel as a d~ in the event the 4.4 Plan is not implemented on schedule, and upon expiration of the s ~F'-' interim criteria. Instead of modifYing the Operating Criteria, the Secretary should adopt special interim criteria for releases of water from Lake Mead, as specific implementation of Article III of the Operating Criteria. The following element<s should be addressed in the adoption onhe special interim criteria: fS) y., a. /' No water user in the Basin, including MWD and SDCW A, can be guaranteed or assured of a firm supply for any specified period. Any assurance or guarantee of supply to MWD and SDCW A will create unreasonable risk. Moreover, the Dt:partmt:nl oflht: Inlt:rior dot:s nol haw lht: aUlhorily lo at any ,-,yilt:ria lhal would assure any water user of a full supply. Any interim cr teria shall not put unreasonable risk on the other states. .to Q~^'"~~ o-"^~ uJ~1" ~OuJ"f{( Page 2 of 3 - ~O"'" ~pftp..~ 0~~~" .