BOARD01504

• Board Meeting Date: 11/19/2001
• Description: WSP Section - Colorado River Basin Issues - Discussion on Proposed Policy Regarding the Navajo-Gallup Project in New Mexico
• Board Meetings - Doc Type: Memo

Agenda Item 12e
November 19-20, 2001 Board Meeting
Page 3 of6

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"There is hereby apportioned from the Colorado River System in
perpetuity to the Upper Basin and to the Lower Basin respectivelv the
exclusive beneficial consumptive use of 7,500,000 acre feet of water per
annum, which shall include all water necessary for the supply of any
rights which may now exist. "

In response to past water marketing proposals, most of the Colorado River states
have, at least implicitly, interpreted this provision as meaning that each Basin's
apportionment is for beneficial consumptive use exclusively within that Basin. This
interpretation has been buttressed by Article VIII, which states:

"Present perfected rights to the beneficial use of waters of the Colorado
River System are unimpaired by this compact. Whenever storage capacity
of 5,000,000 acre feet shall have been provided on the main Colorado
River within or for the benefit of the Lower Basin, then claims of such
rights, if any, by appropriators or users of waters in the Lower Basin,
against appropriators or users of water in the Upper Basin shall attach to
and be satisfied from water that m,zy be stored not in conflict with Article
III

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All other riflhts to beneficial use of waters of the Colorado River Svstem
shall be satisfied solely from the wllter apportioned to that Basin in which
they are situate. "

The Navajo-Gallup project proposes to beneficially consumptively use some Upper
Colorado River Basin water in the Lower Colorado River Basin, contrary to the above
interpretation.

Proponents of the project are attempting to justify the project by reference to several
other Compact articles. First, they argue that definitions in Article II (f) and (g)
defining the Upper and Lower Basins allow transbasin diversions generally 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 and from which waters naturally drain into the
Colorado River System below Lee Ferry, and also all varts of said States located
without the drainafle area of the Colorado River Svstem which are now or shall
hereafter be beneficially served bv waters diverted from the svstem below Lee Ferry. "

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Thus, they argue that New Mexico's Upper Basin apportionment can be used within
that portion of the state that is in the geographic Upper Basin, and 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)).