BOARD01272

• Board Meeting Date: 7/23/2002
• Description: WSP Section - Colorado River Basin Issues - Update on Navajo- Gallup Project in New Mexico
• Board Meetings - Doc Type: Memo

Agenda Item 15
July 23-24, 2002 Board Meeting
Page 4 oflO c

Under the Navajo-Gallup Project, some Upper Colorado River Basin water would be e
consumptively used in the Lower Colorado River /3asin, contrary to the above interpretation.

Proponents of the Project are justifying the project by reference to several other Compact
articles. First, they argue that the definitions in Article II (f) and (g) ofthe terms "Upper" and
"Lower Basins" allow transbasin diversions within states. Article II (f) is quoted above and
Article II (g) states:

"(g) The term 'Lower Basin' means those parts of the States of Arizona, California, Nevada, New
Mexico and Utah within andfrom which waters naturally drain into the Colorado River System
below Lee Ferry, and also all /Jarts of said Stateslocated without the drainGl?e area of the
Colorado River Svstem which are now or shall hereafter be beneficiallv served bv waters
diverted from the svstem below Lee Ferrv. "

Thus, Project proponents argue that New Mexico's Upper Basin apportionment may be used
within that portion of the state that is in the geographic Upper Basin, and also anywhere else in
the state. A careful reading of these definitions, however, shows that the authorization for
transbasin diversions is limited to "parts of said States located without the drainage area of the
Colorado River Svstem." The Colorado River System includes both the Upper and Lower Basin
(see Article II (a)).

Navajo-Gallup Project proponents also rely on Article IV( c) ofthe Compact, which states:

"The provisions of this article shall not apply to or interfere with the regulation and
control by any state within its boundaries o/the appropriation, use and distribution of
water. "

e

The Project proponents argue that if a state's Water law permits a within state Upper to Lower
Basin diversion, Article IV(c) means other states must recognize that permission. However,
Article IV(c) is expressly limited to Article IV and doesn't override other specific provisions of
the Compact.

Therefore, staffis presently of the opinion that the plain language of the definitions of Upper and
Lower Basins in the Compact, coupled with long-standing interpretations of the Compact
requiring "exclusive beneficial consumptive use" of each Basin's apportionment within that
Basin, appear to prohibit the use of an Upper Basin State's Upper Basin apportionment within
the Lower Basin portion of that State.

During deliberations at the Upper Colorado River Commission meeting on June 4, 2002 it
was brought to peoples attention that subsection 303(d) of Public Law 90-537, the Colorado
River Basin Project Act, that the Colorado River Basin States and Congress had addressed
this issue once before in authorizing the Foti-r Comers Power Plant. The relevant language
reads as follows:

(d) If any thermal generating plant referred to in subsection (b) of this section is located in a
Arizona, and if it is served by water diverted from the drainage area of the Colorado River .
system above Lee Ferry, other provisions of ltXisting law to the contrary notwithstanding, such
consumptive use of water shall be part of the fifty thousand acre-feet per annum apportioned