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i / . Jul OS 2003 1:14PM HP LASERJET 3330 ".7 . . . to conclude that adoption of the proposal wouIdhave no effect on any of the relevant species. Such a conclusion, however, may be subject to concurr",nce by the USFWS.14 Legal Authority The Secretary clearly has the authority under the Law of the River to adopt Nevada's proposal (subject to acquiescence or waiver by surplus contract holders in the other states). Under Article II(B)(2) of the Decree, whether a surplus exists (i.e., whether "sufficient mainstream water is available for release") is "as determined" by the Secretary, and section II1(3)(b) of the Operating Criteria requires only that the Secretary make this determinati\)n "from time to time." The proposal deals with its variance from the Decree's allocation of surplus by retaining the ISG's "expectation" of forbearance agreements (waivers) and providing that, pending such agreements, any demand by a surplus contractor within the Decree's allocations would be honored. Steps for Implementation Adoption by the Secretary. The Secretary can adopt this proposal through a modification of the Januazy 2001, ISG Record of Decision that would modify (1) the e~isting ISG, and (2) the 2003 AOP. Since no cbange in the Operating Criteria would be required, the Secretary is not legally required to solicit public comment or consult with the basin state representatives. Nevada expects, however, she would continue the process initiated under the Federal Register notice dated June 19,2002, solicit public comment, and consult with the Governors' representatives (which couId be conducted by correspondence, conference call, or meeting). NEP AlESA. As noted, the prior FEIS and Biologicai Opinion should suffice for adoption of this proposal. Two additional documents would be required: (1) for NBP A, a S~tl.1). injhe .modi.J':ied..B,OD sl1[lportillg-the-eonclu8i_~t~a-sappJemenia:1-EfS-is 11ot-: . . . . required, and (2) for the ESA, a determinati()n -by USBR and concurrence by USPWS that adoption of the proposal would not adversely affect listed species or designated habitat. Waivers by SUq11us Contractors. So long as other surplus contract holders acquiesce, forbearance agreements would not be necessary. However, Neyada would expect to seek such agreements. 13 . Time-Line. This proposal could be adopted by October 8, 2003, if it were begun by July 23, 2003. A suggested implementation schedule is attached. 14 See 50 C.F.R. ~ 402.13(a). " The contractors with surplus contracts are (subject to confirmation): CACWD (Arizona). Coachella Valley Water District. liD, and MWD (California)! and SNW A (Nevada). 5 I