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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-6- State in which water is stored off the mainstream.") However, a decision by the Secretary to account for water in some fashion is not a judicial determination that offstream storage is a consumptive use. Because this sentence raises questions of Compact interpretation among the Basin States, and is unnecessary to the DEIS analysis, Colorado recommends that it be deleted. Intentionally Created Surplus. Colorado fully supports the Intentionally Created Surplus and Developed Shortage Supply programs outlined in the DEIS and more fully described in the Basin States' Comments. Intentionally Created Surplus and Developed Shortage Supply water stored in Lake Mead benefits the Lower Division by providing a storage vessel and mechanism for delivering additional water to the Lower Division States, and benefits the Upper Division by increasing levels in Lake Mead. These increased Lake Mead storage levels reduce the amount of water that must be released from Lake Powell for equalization and balancing purposes. Accordingly, instead of mentioning that ICS will be created "during this NEPA process," ~ Colorado recommends, consistent with the Basin States Comments, that the Final Environmental Impact Statement and Record of Decision expressly adopt Guidelines that permit the creation of Intentionally Created Surplus and Developed Shortage Supply, and provide that this water be accounted in Lake Mead for purposes of equalization and balancing from Lake Powell. Status of F,xisting Interim Surplus Guidelines. The DEIS states that "[t]he proposed federal action would modify the substance of the existing Interim Surplus Guidelines (ISG), published in the Federal Register on January 25, 2001 (66 Fed. Rcg. 7772}, and the term of the ISG from 2016 to 2026."`~ As explained in the Basin States' Comments, the Basin States recommend that the Final Environmental Impact Statement and Record of Decision adopt the Basin States' combined Proposed Guidelines and that the Basin States Proposed Guidelines replace, rather than merely modify and extend, the existing Interim Surplus Guidelines. Disclaimer. The DEIS identifies and describes numerous elements of the Law of the River. Because the individual Basin States may disagree as to the definitive interpretation of specific aspects of the Law of the River, and the NEPA process is not intended to provide a definitive interpretation of the law, the State of Colorado recommends, consistent with the Basin States' Comments, that the Final Environmental Impact Statement and Record of Decision include appropriate disclaimer language to allow the various interested stakeholders to refrain from disputing or contesting the general characterizations of the Law of the River in the DEIS. Precedent for such disclaimer language can be found in past Annual Operating Plans promulgated by the Bureau of Reclamation and authorized by the Secretary of the Interior. Similar to that language, the disclaimer in the FEIS and ROD should provide: Nothing in this (insert "FEIS" or "ROD" as appropriate) is intended to interpret specific provisions of the Law of the River, including, but not limited to: the provisions of the Colorado River Compact (45 Stat. 1057), The Upper Colorado River Basin Compact (63 Stat. 31), The Utilization of Water of the Colorado and Tijuana Rivers and of the Rio Grande, Treaty Between the United States of America and Mexico (Treaty Series 994, 59 Stat. 1219), the United States/Mexico agreement in Minute 242 of August 30, 1973, s See e.g. DEIS at p. 2-2, lines 20-24. q See e.g., DEIS at p. ES-2, lines 27-31. See also, DEIS at pages including, but not necessarily limited to: ES-6, line 28; 2-2, lines 27-28; 2-11, line 3; 3-31, line 10; 4-94, line 12; Glo.6 (ISG). Flood Protection • Water Project Planning and Finance • Stream and Lake Protection Water Supply Protection • Conservation Planning