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<br /> <br />. <br /> <br />Agenda Item 8e <br />September 24-25, 2001 Board Meeting <br />Page 2 of5 <br /> <br />excess of 50,000 AF. Thus, both states would need to rely on unused upper basin <br />apportionment for contracting purposes, or have a contract with another instate water user <br />to cover any shortages. <br /> <br />Discussion <br /> <br />This memorandum provides updated information on the policy questions posed by <br />the Gallup-Navajo Project that were outlined in our July 13th memorandum to the Board. <br />The questions have been restated for continuity<md the updated inJormatiou is in bold <br />print. These questions have been discussed with the Attorney General's Office and our <br />analysis to date indicates the following. <br /> <br />1. The Colorado River Compact is explicit that the consumptive use of water <br />apportioned to the Upper Basin is for uses exclusively in the Upper Basin. Similarly, <br />the consumptive use of water apportioned to the Lower Basin is for exclusive use in <br />the Lower Basin. The term "Upper Basin" as defined in Article lIef): <br /> <br />. <br /> <br />"Means those parts of the states of Arizona, Colorado, New Mexico, Utah and <br />Wyoming within and from which waters naturally drain into the Colorado River <br />System above Lee Ferry, and also all parts of said states located without the <br />draina2e area of the Colorado River Svstem which are now or shall hereafter be <br />beneficiallv served by waters diverted from the system above Lee Ferry. " <br /> <br />The policy question is, can those states situated partially in both the Upper and Lower <br />Basins (Arizona, New Mexico and Utah) use Upper Colorado River Basin water in <br />the Lower Colorado River Basin? <br /> <br />The answer to this question is based on close reading of Articles II and Article <br />III of the Colorado River Compact and some long-standing positions. Article <br />III(a) ofthe Colorado River Compact states: <br /> <br />"There is hereby apportioned from the Colorado River System in <br />perpetuity to the Upper Basin and to the Lower Basin respectively the <br />exclusive beneficial consumPtive use of 7,500,000 acre feet of water per <br />annum, which shall include all water necessary for the supply of any <br />rights which may now exist. " <br /> <br />In response to past water marketing proposals, most of the Colorado River <br />states have, at least implicitly, interpreted this provision as meaning that each <br />Basin's apportionment is for beneficial consumptive use exclusively within that <br />Basin. This interpretation has been buttressed by Article VIII, which states: <br /> <br />o <br /> <br />"Present perfected rights to the beneficial use of waters of the Colorado <br />River System are unimpaired by this compact. Whenever storage <br />capacity of 5,000,000 acre feet shall have been provided on the main <br />Colorado River within or for the benefit of the Lower Basin, then claims <br />