BOARD01674

• Board Meeting Date: 9/24/2001
• Description: WSP Section - Colorado River Basin Issues - Discussion on Future Policy Regarding the Gallup Navajo Project in New Mexico
• Board Meetings - Doc Type: Memo

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Agenda Item 8e
September 24.25, 2001 Board Meeting
Page 3 of5

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 may be stored not in conflict
with Article IlL

All other riJ!hts to beneficial use of waters of the Colorado River System
shall be satisfied solely from the water apportioned to that Basin in
which they are situate. "

The Gallup-Navajo 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 (1)
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:

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"(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 parts of said States located
without the drainaJ!e area of the Colorado River Svstem which are now or shall
hereafter be beneficially served bv waters diverted from the system below Lee
Ferrv. "

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 draina1!:e area of the Colorado River System." The
Colorado River System includes both the Upper and Lower Basin (see Article II
(a)).

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

"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 of water. "

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The proponents argue that if state water law allows 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, coupled with long-