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<br /> <br />. <br /> <br />. <br /> <br />. <br /> <br />Agenda Item 8e <br />September 24-25,2001 Board Meeting <br />Page 4 of5 <br /> <br />standing interpretations of the Compact to require "exclusive beneficial <br />consumptive use" of each Basin's apportionment within that Basin, appear to <br />prohibit the use of an Upper Basin State's Upper Basin apportionment within <br />the Lower Basin portion of that State. <br /> <br />2. Can Arizona divert water from the San Juan River Basin in New Mexico for delivery <br />and use in either the Upper or Lower Basin portions of Arizona? If so, is it charged <br />to Arizona's Upper or Lower Basin apportionment? <br /> <br />If Arizona is attempting to take its Upper Basin apportionment for use in the <br />Lower Basin, it would be covered nnder the same analysis as discussed in Item 1. <br />If Arizona is attempting to take its Lower Basin apportionment for use in the <br />Lower Basin, but through a diversion in the Upper Basin, different questions <br />arise. In response to general marketing proposals, Colorado has usually taken <br />the position that such diversions may possibly be made, if proper accounting <br />methods can be determined. There are issues with how such deliveries affect <br />compliance with 602(a) ofthe Basin Project Act, with the Operating Criteria for <br />the Colorado River reservoirs, and with the decree in Arizona v. California. <br /> <br />3. Can either Arizona or New Mexico permit water diversions if such diversions would <br />cause the state to exceed their compact apportionment under the current hydrologic <br />determination? <br /> <br />Articles III(b)(3) and IV of the Upper Colorado River Basin Compact expressly <br />contemplate that Upper Basin states may use more than their apportionments if <br />that use does not deprive another state of the use of its apportionment. Article <br />III(b)(3)(iii), however, disclaims any intent to "countenanc[e] average uses by <br />any signatory state in excess of its apportionment." <br /> <br />This question thus turns on what Upper Basin supply we wish to assume for <br />purposes of calculating apportionment, and how we wish to enforce the "average <br />use" provision. It is worth noting that Reclamation's current hydrologic <br />determination is based in part on interpretations of the Mexican Treaty delivery <br />obligation with which we have not agreed. In any case, it appears that <br />Reclamation would need to revise and increase the current hydrologic <br />determination in order to issue contracts that would result in consumptive uses <br />that are in excess of those allowed under the current hydrologic determination. <br />Attached are two previous resolutions of the Upper Colorado River Commission <br />dealing with the Hydrologic Determination. <br /> <br />4. To date, the San Juan Recovery hnplementation Program has been able to serve as <br />the Reasonable and Prudent Alternative for all projects needing Section 7 <br />consultation pursuant to the Endangered Species Act. However, model studies <br />indicate that we are getting to the point of having very little water available both for <br />new development in the San Juan and for meeting the Service's flow <br />recommendations. What should Colorado's position in general be with respect to <br />