By Mary Alice Murphy

The Gila/San Francisco Water Commission held its monthly meeting Tuesday afternoon, April 21, 2015, and continued their discussion on a joint-powers agreement for a Central Arizona Project (CAP) Entity with the Interstate Stream Commission.

With public comments set at the beginning of the meeting, Alllson Siwik, Gila Conservation Coalition executive director, requested that comments be allowed during the item discussion. Chairman Anthony Gutierrez replied: "Certainly."

Gerald Schultz, representing New Mexico Resource Conservation and Development districts, commented on the long-term drought seen in the West and especially in California. He read a list of items that have brought the issue of drought in the West to the attention of the nation. They include the governor of California, who said a 25 percent cutback in non-agricultural water use should be implemented; when the level of Lake Mead dropped to its lowest point since construction in the 1930s, and an intake pipe, which delivers water from the lake to Las Vegas, Nev., was close to being exposed; and groundwater pumping is overstressing aquifers.

Gutierrez read from a letter written by Claudia Derning commenting on the passion from both sides of the water issue, saying it was evident to her "that the rhetoric needs to be taken down to the basics." She also questioned why the water users had to pay the Central Arizona Project for the water, and if the end users could afford to pay from this rural area.

With no new business, the one item in old business was the discussion on the draft JPA with the NMISC for appointment of the New Mexico CAP Entity.

"We instructed our attorney, Pete Domenici Jr., to make changes we felt were needed," Gutierrez said. "This draft you have in front of you has been sent to the ISC. Before we go into discussion, I would ask Craig (Roepke, ISC staff as Gila Project manager), to read a letter from the ISC chairman (Jim Dunlap)."

"I received this letter last night," Roepke said. "It sets forth the upcoming deadlines that are critical to achieving our goal to create the New Mexico CAP Entity." He quoted from the letter: "Once created, the NM CAP Entity will enter into the New Mexico Unit Agreement with the Secretary of the United States Department of the Interior and thereafter will operate in accordance with the 2004 Arizona Water Settlements Act and the Consumptive Use and Forbearance Agreement. Under the deadlines mandated by the AWSA, full execution of the New Mexico Unit Agreement by the NM CAP Entity and the Secretary must take place prior to Nov. 24. 2015."

The deadlines include that the revised ISC preliminary draft JPA be uploaded to nmawsa.org on or before April 27, 2015. Comments by members of the GSFWC on the preliminary draft JPA must be provided to the ISC by May 5. Collaborative discussions between the GSFWC and the ISC will continue to May 20. The ISC approval of the final JPA will take place on or before May 21. GSFWC individual governing body members, who wish to become part of the CAP Entity, must pass resolutions to adopt the final JPA before June 11 and present them to the ISC by June 15. Final approvals from the state of New Mexico will be obtained before the end of June.

Gutierrez said he had just gotten off the phone with Domenici, and "we would like to take our final draft to the ISC on May 7." He said he would get the preliminary draft JPA to GSFWC members for comments. "I want the draft to be preliminarily acceptable to the commissioners. I would like each member to mull over if they want to be part of the CAP Entity, through a letter sent to me telling me of your interest."

"The GSFWC will act separately from the CAP Entity," Gutierrez explained. "This water commission will continue, but the CAP Entity will be comprised only of members interested in being part of the entity through their respective governing bodies."

He said Van "Bucky" Allred, Catron County commissioner, had a question about the potential of projects on the San Francisco. "As a member of the CAP Entity, he would have as much vote as any other member. The AWSA says that an average, annual 4,000 acre-feet of water can be developed in the San Francisco Basin. This agreement is inclusive of the San Francisco River."

"We do intend, hopefully, to have the draft posted on the website (nmawsa.org) by Friday, so the public can read it and get it off the website," Roepke said. "If you are interested in becoming a part of the CAP entity, get us your comments. (The U.S. Bureau of) Reclamation needs a copy of the signed JPA by August 1, in order to start their process.

"Governing bodies, which will be part of the CAP Entity, will have to pass resolutions to be part of it," he continued. "We want comments from all members. If different members don't have similar needs, there may be a whole lot of reconciliation. I would suggest after people digest and submit comments, it would be helpful for the GSFWC to have a special meeting to reconcile the different comments in one step. There is not enough time to do it by email."

"I remind members that the JPA does not have to have your own project in it," Gutierrez said. "It doesn't eliminate the San Francisco projects. The CAP Entity JPA does not go into specifics. The JPA is an understanding between the NMISC and the CAP Entity. That's why we are separating the GSFWC and not going to become the CAP Entity."

Roepke requested that GSFWC members reply to Domenici through Gutierrez by this Friday and no later than Monday. "The ISC staff, not the attorney, has talked about the must haves in the agreement. There must be a clear commitment to utilize the New Mexico Unit. There must be agreement on the uses of funds to help design, build, operate and maintain the New Mexico Unit. It must be made clear that the primary purpose of the JPA is to create the CAP Entity. The sole purpose of the entity is to develop the water."

As for the composition of the entity, Roepke said some similar bodies in the state have limited the entity to elected officials, but some don't. "I believe they should be an elected official or a employee of the public entity. ISC staff believes the ISC does not need to be a member of the CAP Entity or a first or second fiscal agent. However, the AWSA does say the NMISC will oversee the funding from the New Mexico Unit Fund."

He said how long a person would serve on the entity would be up to the members. "Officers should be selected and voted on. It is important to remember that before the ISC can transfer money to buy land, for instance, the CAP Entity must have authority to own that property. It may require legislative action to create the authority, but there is some disagreement on the need for that."

Vance Lee, representing Hidalgo County, asked if Domenici could come up with a draft resolution for the groups to use with their governing bodies, and "when is the deadline?" Gutierrez said the ISC chairman had requested the resolutions to be passed by the governing bodies and sent to the ISC before June 15.

Lee commented on participation in the entity requiring people to be elected officials or employees. "I am neither." Gutierrez said often governing bodies appoint someone to such positions.

"Is the main reason for the separation of the GSFWC and the CAP Entity, because we, as the commission, are not a public agency?" Tom Bates, representing Deming Soil and Water Conservation District, asked. Gutierrez replied: "Yes."

Darr Shannon, representing the Hidalgo Soil and Water Conservation District asked if a water commission member were not part of the CAP Entity, would the water commission be depleted of members.

"No, because some things will need to done outside the CAP Entity," Gutierrez said.

Shannon also asked how the two groups would interact to which Gutierrez said he assumed the water commission could interact with the ISC and the CAP Entity.

Ben Fisher of the Silver City Daily Press asked if, since the makeup of the two is not the same, "could other bodies be part of the CAP Entity?"

"Only if they want to develop the water," Gutierrez answered. "Water associations, ditch associations, local governments could be members of the CAP Entity. Each individual member will be listed as part of the CAP Entity."

Allred said he understood that Catron County could be part of the entity, but "what about other entities under the county?" Gutierrez said if they are public agencies, they could pass a resolution to be part of the CAP Entity.

Allred said the county is revisiting projects, and will request funding for alternative project to design, store and develop water. The San Francisco Water Commission is made up of four entities that might be eligible to join the entity.

"Any group that wants to be part of the CAP Entity has to, by resolution, show intent to be part of the CAP Entity, with the intent to develop AWSA water," Gutierrez stipulated.

"Specifics in the Act state the GSFWC is a consulting agency," Gutierrez said. "The CAP Entity has specific duties in the Act. They are separated in the Act by duties and responsibilities."

Lee asked Roepke: "I understand that when the CAP Entity gets into expenditures, it must work through the ISC. Can the ISC spend money without CAP Entity approval?"

"I think the answer is yes," Roepke said. "The Act gives the ISC the ability to spend money, but they must consult with the GSFWC, so the GSFWC had specific responsibilities. It is important that the New Mexico CAP Entity not be confused with the GSFWC."

"I have voiced concerns that funding for alternatives might not be enough for projects to get off the ground," Gutierrez said. "I think that's a role for the Gila/San Francisco Water Commission."

Siwik said she was confused by the draft JPA, which takes out levy assessment and taxes that the CAP Entity would need authority for to assess. "How does the CAP Entity intend to fund the New Mexico Unit?"

"That was also my question to Domenici," Gutierrez said. "I think he wanted to clarify that the CAP Entity would not have access to the New Mexico Unit Fund."

Gutierrez said funding could be sought from other agencies, such as the USDA, the Water Trust Board, water leases, but "we need a fiscal agent."

Fisher asked if members of the CAP Entity could raise taxes to fund the project. Gutierrez said the JPA does not have language to levy taxes.

Howard Hutchinson of Catron County said he is a member of the San Francisco Soil and Water Conservation District and an alternate to the GSFWC. "We have concerns specifically on how members of the GSFWC can be recognized as members of the CAP Entity. This JPA draft makes it clear it is exclusive to the Gila River. I told Domenici I would create language to have the SFSWCD including in the JPA."

On page 9, Hutchinson said the JPA says "one CAP Entity, one CAP unit. Language changes create potential for other units. We will offer three or four alternatives that will provide water downstream from upstream diversions. We think we can restore water to the cienegas and can provide offstream storage and impoundments within the San Francisco Basin. My language is draft, and I'm sure Domenici will take a keen knife to it."

Lee suggested the language that says Gila River in the JPA should have San Francisco River added to it.

Schultz asked if there would be a time for public comment on the draft JPA. Gutierrez said anyone could comment on the website.

Schultz then asked if only public agencies in the four counties could be part of the CAP Entity or whether others outside of the area could join to develop the water. "Is this commission helping to facilitate to create the CAP Entity?"

"We requested to be the CAP Entity," Gutierrez replied. "The ISC made it clear that it could only be done through a JPA, and it became clear that the GSFWC could not be the CAP Entity. I think we are facilitating right now."

"Could there ever be a public vote on other things to pay for?" Schultz asked.

"If we had a referendum, it would be a public vote," Gutierrez said. "The JPA lays out the responsibilities between the CAP Entity and the ISC."

Siwik pointed out in the letter from Dunlap that it says GSFWC members' comments are requested. "Is it only GSFWC members who can comment?"

Roepke said the ISC will post the draft preliminary JPA and "the public may comment as fully as they would like."

Gutierrez said the counsels for the GSFWC and the ISC would look at comments. "The GSFWC is the only body that has come forward to be the CAP Entity."

"I would like to speed up the timelines," Gutierrez said. "We will also call a special meeting tentatively for Tuesday, April 30, at 1 p.m. here. June 11 will be the deadline for the resolutions, for which we will provide a draft resolution."

The only other item of business was a discussion on a request from Bates to hear Norm Gaume's presentation. A committee met immediately after the meeting to discuss the issue.

The next regular meeting is set for 1 p.m. Tuesday, May 19.