By Mary Alice Murphy

The Gila Basin Irrigation Commission first heard reports from the various ditches on their Gila River and ditch water levels.

Don Stailey, representing the Gila Farm Ditch, said the levels were a little low.

Topper Thorpe, representing the Fort West ditch, said he was noticing a decline of water in the river. "It suggests to me that in the not too distant future, we may have to go on terms."

Also of the Fort West Ditch, Jerry Woodrow, said the Gila River for the past three days had dropped a lot.

Thorpe presented an update on the Interstate Stream Commission, of which he is a member, and the Arizona Water Settlements Act process. "I will describe the basic situation as it relates to the AWSA. Particular to the ditches, important decisions need to be made by July 3. The decision is about whether the ditches want to be part of the New Mexico CAP (Central Arizona Project) Entity by resolution."

"The CAP Entity will have the authority for the New Mexico Unit," Thorpe continued.

He said the most pertinent facts on the AWSA, passed by Congress and signed into law in 2004, include $66 million set aside to meet water utilization alternatives to meet a water supply demand and the New Mexico Unit, a diversion that would utilize up to 14,000 average annual acre-feet of water for the primary use of the four counties of Grant, Luna, Hidalgo and Catron. An amount of $34 million up to $62 million was allocated on a reimbursement schedule for construction of a unit. Thorpe said because of low interest rates, the amount will be closer to $34 million, but the $66 million is increasing. He said some of the $66 million has been awarded to about 15 projects, but not fully funding any of them. The GBIC received partial funding to create more permanent diversion structures for the ditches. He said contracts were being drawn up to present to the GBIC, on whether the group wants to comment and move forward to receive the $1.2 million allocated.

"The ISC is responsible for the funds and to develop the New Mexico Unit, which the state of New Mexico made the decision to develop and sent a letter of intent to the U.S. Secretary of the Interior," Thorpe said. "The next step in developing the unit is to identify the CAP Entity to oversee the design, construction, operations and maintenance, as well as allocation of water."

Thorpe noted that he is not a lawyer and would not be able to answer some questions, but he could find out the answers.

He said the JPA is being worked on. "It was presented at the last meeting on May 20, but was not accepted, as there were some questions related to the way funding would be handled. The CAP Entity will have a number of different parties. This is not the final JPA. On June 9, we hope to pass the 'final' JPA. There are a number of different groups that want to be members."

Mary Burton Riseley, Gila Valley resident, asked who would get to decide whether a party that applies is accepted.

Thorpe said he could not answer that, but that only political subdivisions within the four counties were eligible.

Kyle Johnson, Gila resident, asked if the parties were aware they were making a commitment that is open-ended to what the project is and how much it will cost and that they will be obligated to issue bonds or raise taxes. "Could a ditch association or soil and water conservation district do that and under what authority?"

Thorpe said he couldn't answer that.

David Ogilvie, GBIC chairman, said, as the ditches and districts are political subdivisions, they would fall under the same authority as a municipality or county.

Johnson asked if the authority extended to raising fees, to which Ogilvie said he couldn't answer that.

Thorpe looked for, but said he failed to bring the list of those groups already interested in being part of the CAP Entity. "While the ISC has the overall responsibility of the money, neither the Gila/San Francisco Water Commission nor the GBIC can be a party to the CAP Entity, because they are not political subdivisions. Individual ditches qualify, and it is a question of whether they want to be part of the CAP Entity. Some of the obligations include that the entity will be the group that gets the design taken care of, supervises the construction and divides up the water. The CAP Entity can say: 'Your dues will be this amount and this is the way we will allocate the water.' The entity will identify the costs and set rates for the water. It will have a significant role."

Thorpe said, at the last GBIC meeting, when asked how long it would be before the area could see a benefit from a unit being built, ISC's Gila Project Manager Craig Roepke said 15 to 25 years. "That's because of hoops like the NEPA process."

"My judgment is that the irrigation community should be represented initially in the CAP Entity," Thorpe continued. "If you look at the JPA, it says if one is a member of the CAP Entity, you have one vote in what's done. At the same time, you can opt out at any point down the road, if the members don't want to be a part. I would hope as time goes on that it is the continued desire on the part of ditches and irrigators to be part of the CAP Entity."

Riseley asked about a portion of the JPA on page 15, which says that withdrawing parties must honor their obligations and cannot receive refunds.

"Do we want to be on the outside looking in or be part from the beginning?" Thorpe asked. "Remember, each group has one vote just like every other group."

Riseley asked if a ditch decides it doesn't want to be obligated, "how would that work?"

Thorpe said it would be at the will of the entity. "If a ditch decides to be a party initially, I'm going to guess that there would not be a big assessment of funds or dues. At the beginning, it will be the development of organizational bylaws and such infrastructure. So I don't think we will obligate ourselves to a lot of funds. It makes sense for a ditch to be part of the development, and if you haven't obligated to anything, you can choose to get out."

Riseley asked if the decision is by a larger group, when does it have responsibility for raising money.

"It leaves the door open to be done in various ways," Thorpe answered. "I don't think it will dictate to issue bonds, but each group may pay dues, depending on the tolerance of the ditch members."

Riseley also raised the issue of the replacement costs to the Central Arizona Project for water that would be used. "It once was $89 an acre-foot, and now it's $211."

B.J. Agnew, GBIC secretary, said only users would pay those exchange costs, not ditches.

Ogilvie noted that when ditches blow out in floods, they wouldn't get fixed without federal dollars. "Here is an opportunity to get more permanent diversions into the ditches and more water for agriculture. I would think ditches would be better off being a part of the decisions, so you don't let municipalities and counties make decisions without agricultural input."

Johnson said it had never been clear to him about water rights. "Anyone who does not have water rights, will they get them?"

"You cannot get water rights, but you can get water," Ogilvie replied.

"If I derive a benefit, relying on my exiting water rights, are my water rights senior to this 14,000 acre-feet?" Johnson asked.

Ryan Jameson, Gila Valley resident, said a water rights holder can buy the water to use it.

"It seems to me, you are ready to undertake a huge responsibility and obligation," Johnson said. "It's my sense that the cost of construction and of the water is not clear or where a person sits on the cost of construction."

Jameson said: "The CAP Entity will be developed and the Unit built. I think we have to be part to decide who gets the water and benefits. If four people are part of the entity, each ditch would have one vote, the same as a municipality. It's important for us to be in on the decision-making. It's not too late. If you have not obligated, you can withdraw."

Sharman Russell, Gila Valley resident said it reads to her on page four that "we are bound by it."

"Each entity that is part of the CAP Entity," Jameson said, "they cannot make us or obligate us to anything. It's gonna happen, so why not be in the development stage?"

Thorpe noted that the JPA was not in its final form.

Don Stailey asked if the JPA could be amended, which is can with approval by the Department of Finance and Administration.

Linda Stailey, his wife, said one component had been ignored. "We've been given 14,000 acre-feet of water. What we're trying to do is build it. Money can be making money during construction by leasing the water back to Arizona. While we're waiting to spend money, we can invest it."

Ogilvie said: "This is why we decided to form the GBIC. Ten years ago we weren't represented. Our bylaws don't obligate ourselves, but we wanted to participate and have a voice in the process. We are at a deadline of keeping water in the valley, in agriculture. I think it behooves the ditches to decide whether they want to participate."

Riseley asked what the stand of Freeport McMoRan Copper & Gold Inc. is on the water that Ogilvie leases.

"I don't know," Ogilvie said. "I have a 10-year lease, but no voice in the company."

Peter Russell, Gila Valley resident, asked when ditches decide one share one vote, "then Freeport will decide," to which Thorpe said: "Not totally."

Russell also said if a ditch joins and does not pay its assessment, a town or county could foreclose. The original JPA, according to Russell, said property couldn't be condemned, but that language was dropped. "If this is new water, why can existing water right be condemned?"

Thorpe again said he couldn't answer that. "What it boils down to is a ditch not having a vote. Each party has one vote. If all six ditches joined, they would have six votes."

Russell asked: "When can you get out? If it's a $700 million diversion, with $100 million from the AWSA, who will agree to the other $600 million?"

"I raised the same question," Thorpe said. "It still makes sense to be involved up front. If I understand the language, one can leave without having to obligate oneself."

He explained the proposed diversion unit had been reviewed at a 10 percent appraisal level. At present, engineers are identifying an area and doing core drilling. "A portion of the water will be stored at the upper end of the valley. The desire is to have an adequate and dependable supply of water, which allows crop alternatives. Not only is the water supply for irrigators, but it also benefits the river ecology."

Agnew said the stored water would be skimmed off the tops of floods, leaving water in the river.

Johnson asked how many people would be part of the CAP Entity. "Only those (political subdivisions) agreeing to the JPA," Thorpe replied.

Risely said that in the JPA she saw a conflict with whom the New Mexico Unit belongs to. In at least two parts, it says it belongs to the CAP Entity, but in section VII, it says "Contractual rights or property rights... shall be ...held in trust by either the First fiscal Agent or the Second Fiscal Agent..."

[Editor's Note: This author is not a lawyer, so will not comment, but the rest of the item reads: ... "as prescribed by the New Mexico CAP Entity for the benefit of the New Mexico CAP Entity until or unless the New Mexico CAP Entity has acquired separate legal status..."]

Thorpe said he could not answer that question. He noted that July 3 is the deadline to become part of the CAP Entity. "On June 9, I am optimistic that the ISC will approve the JPA. Hopefully, in the modified JPA, it can address the questions you have raised."

Peter Russell asked if there would be ditch meetings. "It's up to the individual ditches," Thorpe replied, to which Russell replied, as did ditch member Jerry Woodrow, that they encouraged all ditches to have meetings and sign up for the CAP Entity or not.

Thorpe said each ditch has elected commissioners. In the Fort West Ditch bylaws it says there can be a commission meeting and if two agree, it becomes the decision of the ditch.

Riseley asked where the June 9 ISC meeting would be held, and Thorpe said Albuquerque.

Johnson said Roepke had a spreadsheet in his possession that Norm Gaume had asked for. Riseley said Gaume received it by accident. Johnson asked if anyone had seen it, to which Thorpe said the issue was not relevant to the present discussion.

Peter Russell asked about CAP Entity members not having sovereign immunity. It was explained that members would have sovereign immunity as individual entities within the CAP Entity. It is the CAP Entity itself that does not have sovereign immunity.

"You just need to make a decision," Thorpe said. "You have the lion's share of information in this JPA. Do you want to be part of the decision or on the outside, having to do someone else's decisions?"

He also noted that all ditches have to comply with the Open Meetings Act, so "I suggest you put out a meeting notice before June 9, and hold the meeting soon after. You must pass a resolution to become part of the CAP Entity, if that is your decision."

Linda Stailey said she had a sample resolution she could share.

Thorpe said he would get the questions answered and ask Agnew to send the supplement with the minutes.

Don Stailey said if all the ditches in the area signed up, it would mitigate how many municipalities and counties would control things. "As irrigators, we have a lot of power, if we use it. Every person in the world depends on agriculture at least three times a day, so why not have this water to feed us?"

The next GBIC meeting will take place as needed.