By Mary Alice Murphy
After extensive discussion on the Gila/San Francisco Water Commission becoming the New Mexico CAP (Central Arizona Project) Entity, as set forth in the Arizona Water Settlements Act and its accompanying Consumptive Use and Forbearance Act, commission members heard representatives of the Interstate Stream Commission comment and give reports.
Craig Roepke, ISC Gila Project Manager, said he would give a brief overview and some of the staff he had brought with him to the meeting would talk and then they would answer questions.
"I'm personally happy to see the Gila/San Francisco Water Commission step forward to be the CAP Entity," Roepke said. "Only the ISC can make the decision, and I don't know of anyone else who has asked to be the entity."
He said items that are clear in the statutes are that it is required to reimburse the Secretary of Interior's costs pursuant to actions taken.
"The process to designate the New Mexico CAP Entity is not stated in any part of the Act and CUFA," Roepke said. "Some critical deadlines include the end of 2019, when the Secretary of the Interior is required to issue a record of decision. Before NEPA begins, a 30 percent engineering design of the New Mexico Unit must be done. We need to hire a large engineering firm or a group of engineers to do the 30 percent design. The CAP Entity will have to hire significant staff. As an example, the San Juan-Chama Project hired 14. You, if you become CAP Entity, have to be prepared to hire.
"We are here to consult with the Gila/San Francisco Water Commission, as we have many times in the past," Roepke said. "We contacted you for your recommendations and included them in the briefing packet for the ISC members. We're all going to have to work closely together, not just the ISC and the NM CAP Entity, but also with the Bureau of Reclamation and the Fish & Wildlife Service, more closely than in the past.
"I look forward to your asking to become the CAP Entity," Roepke said. "If you become the CAP Entity, you will be joined at the hip with the ISC."
Ali Effati, ISC civil engineer/water resources, presented the process moving forward with the AWSA process.
"New Mexico sent the letter to the Secretary of the Interior that the state wants to pursue a New Mexico Unit," Effati said. "The letter triggers the Dec. 31, 2019, deadline for the record of decision. Also it has triggered the NEPA process, for which the lead agency is the Bureau of Reclamation along with New Mexico.
"Different alternatives will be evaluated through a 30 percent engineering design, which is required for NEPA," he continued. The engineering needs to be done quickly. We are selecting and signing with an engineering firm, which is done through consultation with the New Mexico CAP Entity, the ISC and Reclamation quickly."
"Does that include consultation before the commission soon?" Anthony Gutierrez, GSFWC chairman, asked.
Roepke said for the 30 percent design, the RFP has to have the money in hand. "It may be that the ISC, Reclamation and the Gila/San Francisco Water Commission create the RFP together, and the ISC issue the RFP, since it has the funds. One of the staff recommendations for the ISC is that it begin the 30 percent design process."
Pete V. Domenici, Jr., on contract with GSFWC to provide legal advice, said in the New Mexico Unit Agreement, it says: '...shall transfer to the New Mexico CAP Entity the decision on the 30 percent design.' How does what the ISC is doing reflect on the CAP Entity? After this water commission asks for a transfer of responsibility, would that include the funding? The New Mexico Unit Agreement has to be signed by the end of 2015."
Roepke said the ISC staff has talked internally about the 30 percent design contract that would be assigned to the CAP Entity. "We want the three of us to sit down together to develop an RFP that is agreeable to everyone. The worst thing would be to get to the 30 percent design and have the people involved not get what they want."
Dominique Work, ISC attorney, said the staff has talked about the Act, the CUFA and the New Mexico Unit Agreement. She gave a handout on the sections that relate to the New Mexico Unit. "Section 107 of the AWSA dealt with money. $66 million adjusted to 2012 dollars goes into the New Mexico Unit Fund in 10 equal installments from 2012-2021. Each installment is $6.6 million plus interest, which is about $9 million now."
She cited Section 212, which addresses the NM Unit, and once the CAP Entity is named, it can ask to have authority over the Unit. The entity will own the Unit. The NM Unit Fund is managed by the ISC and may not revert to the NM General Fund. The money stays in the fund.
"The way we interpret the NM CAP Entity is that it will not have direct access to the funding," Work said. "We think it means it can be disbursed only by the ISC. If you are the CAP Entity, I think we can work with you on disbursement of funds, but based on the ISC's interpretation, we cannot transfer the funds to you." She also noted the funds were not controlled by New Mexico DFA (Department of Finance and Administration), but only by ISC.
Roepke said, each year, the ISC staff requests funds, and the request is approved by the ISC. "Our administration transfers the funds to our budget, which does not require DFA approval, I'm fairly certain."
Domenici asked if, as part of the operation of the Unit or for the design and construction, federal or state agencies would allow disbursement of funds to potentially invest as part of the design, construction and operation so the CAP Entity could grow its funds.
Roepke answered that if the ISC were to approve disbursement, he thinks it could happen.
Work said her interpretation was that "it would not be possible."
Domenici said as the CAP Entity, the GSFWC would need to staff up. "That's a lot of expense. I think even before it becomes the CAP Entity, this commission will have expenses."
Work said once the CAP Entity is named, it "needs to be in close cooperation with the ISC. I think expenses will come through the New Mexico Unit Fund."
David Anderson, ISC Water Resource Specialist Senior, presented an overview of the NEPA process. "It cannot begin until the New Mexico Unit Agreement is signed between the New Mexico CAP Entity and the Secretary of the Interior. It is very important to get the engineering consultant under contract as soon as possible, because a description of the New Mexico Unit should be inserted into the New Mexico Unit Agreement. We spoke with Reclamation on the NEPA Process, because the Bureau is the lead agency. The ISC has the option to be the co-lead agency. NEPA will cost between $5 million and $10 million to complete."
Gutierrez asked what the estimate was for the 30 percent engineering design. Effati said it would be 10 percent of the total project cost, worst-case scenario. A few minutes later in the meeting, he corrected his estimate to about $10 million, as the 10 percent he mentioned includes the environmental permitting and land acquisition.
Jim Massengill, representing the city of Deming, said he was confused about dates and whether funds are available. Roepke said the New Mexico Unit Fund has about $23 million available and will get another $9.4 million in about a month.
Domenici asked for an outline of meetings between the ISC, Reclamation and the GSFWC.
"There are a number of options," Roepke said. "Frankly, appointing a committee, an individual or a group would be most efficient. I'll do it every month if the whole commission wants to be in on the discussions. I came down here monthly for years. We need to work closely and cooperatively."
To set the next meeting, Diaz said he thought it should be sooner rather than later to decide on the CAP Entity.
Gutierrez set a special meeting for Jan. 27. "If we have an action item, I would include teleconferencing."
Domenici said he would like to be available in person or by phone. "It would be easier by phone."
Lee said he would like to see an agenda item for discussion or action on the contract with Domenici.
The meeting was adjourned.
Disclaimer: In the past, this author has provided and may provide in the future, services to the GSFWC and the Interstate Stream Commission, through her additional freelance business.