Basin States' Comments on Draft Environmental Impact Statement, CO River Interim guidelines for Lower Basin Shrotages and Coordinated Operations for Lake Powell and Lake Mead

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-5- The DEIS states that this issue will be resolved through discussions with Mexico by the International Boundary Waters Commission in consultation with the Department of State.4 Because of the importance of this issue to both the Upper and Lower Division States, Colorado believes that all the Basin States must be consulted on and included in these discussions. Definition of Colorado River System. The Colorado River Compact provides a very specific definition of the Colorado River System. The DEIS appears to be somewhat inconsistent in its use and definition of this term. Specifically, the DEIS sometimes confuses the concepts of the Colorado River System, Colorado River System water, and the Colorado River Mainstem.s Colorado requests that the Bureau attempt to avoid such inconsistencies in its Final Environmental Impact Statement and Record of Decision. Definition of Consumptive Use. In summarizing the apportionments of the use of Colorado River water to the Basin States, the DEIS states that "[t]he apportionments of the Basin States are generally presented in terms of consumptive use, which consists of diversions minus return flows."~ The DEIS thus appears to make the legal assertion that the "diversions minus returns flows" definition of consumptive use is applicable to the allocations of all of the Basin States under the Law of the River. Such a legal assertion would be incorrect. Although the Supreme Court relied upon this "diversions minus return flows" definition in portions of Arizona v. California, the Supreme Court stressed that in so doing it was not interpreting the Colorado River Compact. Moreover, the "diversions minus return flows" definition of consumptive use is not present in the Colorado River Compact. Pursuant to Article VI of the Upper Colorado River Basin Compact, "consumptive use" in the Upper Basin is defined as "man-made depletions of virgin flow at Lee Ferry." The State of Colorado would accept the DEIS' general definition of "consumptive use" for the limited purpose of analyzing impacts of the proposed federal action within the identified geographic scope. However, the limited purpose of this definition should be made clear. The DEIS should not include statements that could be misinterpreted as interpretations of the Law of the River. Off-stream Storage as Beneficial Use. The DEIS affirmatively states that "consumptive use by a Lower Division state includes delivered water that is stored off-stream for future use by that state or another state."~ The accuracy of this sentence has not been established as a matter of law, and is potentially contrary to or inconsistent with the Colorado River Compact and other elements of the Law of the River. The support for this statement is likely derived from the 1999 Offstream Storage Rules, which states that "[t]he Secretary will account for the water that is diverted and stored by a storing entity as consumptive use in the Storing State for the year in which it is stored." (A "Storing State" is defined as a Lower Division a For example, the DEIS explains that all necessary action will be conducted through the IBWC and the Department of State at pages including, but not necessarily limited to, p. 1-18, lines 9-11. 5 For example, the DEIS confusingly interchanges the identification and description of mainstem activities and facilities with the phrase "Colorado River System" at pages including, but not necessarily limited to, pp. 1-9, lines 33-35; 1-18, lines 12, 29-38; and title of Appendix B. ~ See e.g., DEIS at p. 1-11, lines 5-7. ~ See e.g., DESI at p. 1-15, lines 29-31. Flood Protection • Water Project Planning and Finance • Stream and Lake Protection Water Supply Protection • Conservation Planning