22 ‎(3)‎

• Board Meeting Date: 1/23/2008
• Description: Attorney General's Report, Legal Briefting and Executive Session
• Board Meetings - Doc Type: Memo

rage
shortage shaz-ing pursuant to the 19~~ treaty. pinally, the Subunit participates in Basin
States rr~eetings with the International Bounda~~~ and Water Cotrtmission, the U.S. Mate
Department, and the Bureau of Rec;lar~~atio regarding f€~rn~al sorta~ sharing discussions
with ~~exico. The Subunit provides legal counsel to the C~~f CB and Upper Colorado .River
Cornissior- on rr~atters related to inforrr7al €raeetings conducted among irCterested
stakeholders zn both thy: United Mates and Mexico.
ltl, Ce~trai Ariz©r~a Pr©iect I}iv€rsic~n lltates
Section 1521(a~ of the Colorado River Basin Project Act ('"Basi~z Project Act") limits the rate of
diversion. of Colorado River water throe€> the Central Arizona Project {"C~.P") to ?,SflQ cubic
feet per second, except under certain limited conditions. Arizona has requested the Upper Basin
States a~~ree to lift this limit via a stipulatcd provision in the 7-States' Agreement to allo~~r far
augmentation of the Colorado River Supply. in tl~e course of discussions over Arizona's request,
Arizona also disclosed to the Upper Basin States that the Secretary of the interior had already
allo~-ed Arizona to di~~ert water thro~rgh the CAP at a higher rate than that provided for by the
Basin Project Act.
The. Subunit researched the ,steps Colorado must talk; to preserve its ability to object to such
excess diversions. Based in part on the Suhunit's res~;areh of the legislative history ofthe Basin
Project Act, the ~,,~pper Division States agreed to not stipulate to Arizona's request. 'urtherzr~ore,
upon researchini; tl~e steps Colorado must take to pres~n-e its ability to object to the Secretary
authorizing such diversions, the Subunit draftod a letter on behalf of the Colorado Water
Conservation Board to the Bureau requesting CAP diversion data to verify tivhether and to what
extent CAP diversions are violating the Basin Project Act and causing injury to the Upper Basin.
I ~,. Pre aration f©r Fore C€~~€~rac~o River C©rn act Liti atia~z
ane of the concerns underlying the creation of the Colorado River Subunit was the potential
for interstate litigation regarding the Colorado Rive- Compact. The Lower Division States
appear to have invested much more time in preparing for such litigation than the Llppcr
i~ivision Stags. l~or example, Ariz©na has rctairted outside counsel to assist with litigation.
preparation. California has a State Board devoted to Colorado River issues. Nevada
continues to threaten to force reconsideration of thc. Compact if its aced for additional water
supplies is not nret. This concern. is heightened by the knowIcdge that, due to the carr~plexity
of the factual and legal issues, the number of parties affected, anal the sheer number of
possibly relevant docuzx~ents, adequately preparing for Colorado River Compact litigation
will take several vearS.
In response to this concern, the Colorado River Subunit vas charged to prepare Colorado for
future Colorado River Corrzpact litigation. This cl~argc~ involves three clezr~ents.
First, the Subunit pr~pat°es legal n7emorancia researching iss~ttes that may arise i~z future
Colorad© River Compact litigation. These memoranda include those prepared i connection
with the Basin Stags negotiate©ns, described above, as c~-ell as the followin~.~ topics: