BOARD02059

• Board Meeting Date: 1/23/2002
• Description: WSP Section - Colorado River Basin Issues - Proposed Policy Regarding the Navajo-Gallup Project in New Mexico
• Board Meetings - Doc Type: Memo

Agenda Item 14e
January 23-24, 2002 Board Meeting
Page 4 of?

Navajo-Gallup Project proponents also rely on Article IV(c) ofthe Compact, 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. /I

The Project proponents argue that if a state's water law permits a within state Upper to Lower
Basin diversion, Article IV(c) means other states must recognize that permission, 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-standing interpretations of the Compact
requiring "exclusive beneficial 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, are the depletions from such
diversions charged to Arizona's Upper or Lower Basin apportionment?

The analysis provided in Item I above would cover any Arizona attempt to take its Upper Basin
apportionment for use in a portion of Arizona within the Lower Basin, If Arizona attempts 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 receiving increased attention
and some people believe the issue is resolvable via accounting solutions. However, this
approach must take into consideration Article XIV of the Upper Colorado River Basin
Compact that would make such use in Arizona a lesser priority. Such use in Arizona
would also need to take into consideration the San Juan River flow recommendations for
endangered fish recovery and what would happen to deliveries to Arizona if the flow
recommendations were not being met. Also, given that the one million acre-feet allowed for
tributary uses under the Colorado River Compact has been fully utilized, such use may be
curtailed in the event of shortages under tile ccimpact or to the Mexican Treaty delivery.

Finally, in response to general marketing proposals, Colorado has taken the position that such
diversions might be made, if proper accounting methods can be determined, How such
deliveries, if made, would affect compliance with (1) 602(a) of the Basin Project Act, (2) the
Operating Criteria for the Colorado River Reservoirs, and (3) the decree in Arizona v.
California. must also be considered.

3, Can either Arizona or New Mexico permit water diversions which would cause the state to
exceed its compact apportionment under Reclamation's 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 use more than their apportionments if that use does not deprive another .
state of the use of its apportionment. Article lII(b )(3)(iii), however, disclaims any intent to
"countenanc[e] average uses by any signatory state in excess of its apportionment."