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

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Agenda Item 12e
November 19-20, 2001 Board Meeting
Page 4 of6

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

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

The proponents argue that if state water law ~l1ows the within state Upper to Lower
Basin diversion, Article IV(c) means other states must recognize it. However, Article
IV(c) is expressly limited to Article IV and doesn't override other specific provisions
of the Compact.

Therefore, staff is presently of the opinion that the plain language of the definitions of
Upper and Lower Basins in the Compact, c01,lpled with long-standing interpretations
of the Compact to require "exclusive benefipial 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.

2. Can Arizona divert water from the San Juan River Basin in New Mexico for delivery
and use in either the Upper or Lower Basin portions of Arizona? If so, is it charged
to Arizona's Upper or Lower Basin apportionrhent?

If Arizona is attempting to take its Upper Basin apportionment for use in the Lower a
Basin, it would be covered under the same analysis as discussed in Item 1. If Arizona ..
is attempting to take its Lower Basin apportionment for use in the Lower Basin, but
through a diversion in the Upper Basin, different questions arise. The latter
approach is currently getting increased i discussion and people are leaning
towards the idea that accounting solutio~lS may be possible. However, this
approach must take into consideration Article XIV of the Upper Colorado River
Basin Compact that would likely make us~ in Arizona a third priority. Use in
Arizona would also need to consider the S~n Juan River flow recommendations
for endangered fish recovery and what happens to deliveries to Arizona if the
flow recommendations are not being met.

In response to general marketing proposals, Colorado has usually taken the position
that such diversions may possibly be made, if proper accounting methods can be
determined. There are issues with how such lIeliveries affect compliance with 602(a)
of the Basin Project Act, with the Operating Criteria for the Colorado River
Reservoirs, and with the decree in Arizona v.:Califomia.

3. Can either Arizona or New Mexico permit water diversions if such diversions would
cause the state to exceed their compact app(>rtionment under the current hydrologic
determination?

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Articles III(b)(3) and IV of the Upper Colorado River Basin Compact expressly _
contemplate that Upper Basin states may us~ more than their apportionments if that ..
use does not deprive another state of the use of its apportionment. Article