14 Attorney General Report

• Board Meeting Date: 11/18/2008
• Description: Attorney General's Report and Legal Briefing
• Board Meetings - Doc Type: Memo

Page 4
number of legal and practical issues for Colorado and the Upper Division States to consider
when negotiating with the Lower Basin and Mexico on shortage sharing of the Colorado River
System. Moreover, it is participating in 7-States meetings with the International Boundary and
Water Commission, the U.S. State Department, and the Bureau of Reclamation in preparation of
formal discussions with Mexico on shortage sharing pursuant to the 1944 Water Treaty. Finally,
the Subunit expects to participate in informal meetings and field trips to be held this fall and next
spring among the 7-States and Mexico's non-governmental entities to discuss and identify
mutually beneficial water management strategies in the Colorado River Basin.
10. Lower Basin States Forbearance Agreement
In order to finalize the 7-States Proposal, the Lower Division States required that the Proposed
Guidelines acknowledge and operate according to a Lower Basin "Forbearance Agreement." The
Forbearance Agreement is ostensibly an agreement of concern only to the Lower Division states
negotiated for the narrow purpose of defining the manner in each of the Lower Division States
would relinquish their respective claims to "Intentionally Created Surplus" water claimed by
another Lower Division State. It was not intended to decide other issues of relevance to all
Seven Basin States. However, because the Proposed Guidelines are dependent on execution of
the Forbearance Agreement to implement the "Intentionally Created Surplus" System, and
Arizona must agree to sign the Forbearance Agreement before it is functional, Arizona has
recently used the agreement to leverage its position during the 7-States negotiations and NEPA
process. For this reason, and at the request of the Governor's Representative and Colorado
Water Conservation Board, the Colorado River Subunit is currently researching whether and to
what extent the Bureau of Reclamation and Secretary have to abide by the Forbearance
Agreement to operate the Colorado River's system of reservoirs.
11. Central Arizona Proiect Diversion Rates
Section 1521(a) of the Colorado River Basin Project Act ("Basin Project Act") limits the rate of
diversion of Colorado River water through the Central Arizona Project ("CAP") to 2,500 cubic
feet per second, except under certain limited conditions. Arizona has requested the Upper Basin
States agree to lift this limit via a stipulated provision in the 7-States' Agreement to allow for
augmentation of the Colorado River Supply. In the course of discussions over Arizona's request,
Arizona also disclosed to the Upper Basin States that the Secretary of the Interior had already
allowed Arizona to divert water through the CAP at a higher rate than that provided for by the
Basin Project Act.
The Subunit researched the steps Colorado must take to preserve its ability to obj ect to such
excess diversions. Based in part on the Subunit's research of the legislative history of the Basin
Project Act, the Upper Division States agreed to not stipulate to Arizona's request. Furthermore,
upon researching the steps Colorado must take to preserve its ability to object to the Secretary
authorizing such diversions, the Subunit drafted a letter on behalf of the Colorado Water
Conservation Board to the Bureau requesting CAP diversion data to verify whether and to what
extent CAP diversions are violating the Basin Project Act and causing injury to the Upper Basin.