They make unanimous decision to approve resolution

By Mary Alice Murphy

On Thursday, June 25, 2015, at the Grant County Commission regular meeting, a standing room-only crowd filled the Commissioners' Chambers. The vast majority attended to hear and give public input on the commission's agenda item to approve or disapprove the joint-powers agreement to create the New Mexico Unit of the Central Arizona Project pursuant to the Arizona Water Settlements Act.

The two commissioners present at the Tuesday, June 23, 2015 work session grilled County Planner Anthony Gutierrez, who is the county's representative for AWSA-related issues. Visit http://www.grantcountybeat.com/news/news-articles/22588-grant-county-commissioners-wrestle-with-cap-entity-jpa-decision for a comprehensive report of the questions asked and answered.

Because of the crowd, Commission Chairman Brett Kasten moved the resolution, which was the 29th item on a long agenda to immediately following a public hearing on moving from a three-member commission to a five-member commission.

[Editor's Note: The hearing on a potential five-member commission will be covered in a future article.]

"We will hold public comment on the JPA, and then staff comment, and then commissioners' comments," Kasten said. "The JPA has been signed by eight groups. Our voting does not keep it from happening. Your input will help. Our minds are not made up. Please do it in an orderly fashion. We would like to keep comments to the JPA to two minutes each person."

The first to speak was Allyson Siwik, Gila Conservation Coalition executive director: "The Gila Conservation Coalition has serious concerns about the JPA to form the New Mexico CAP Entity."

She referred to sections of the JPA, which can be viewed in its entirety at http://nmawsa.org/ongoing-work/nm-cap-entity-jpa/nm-cap-entity-joint-powers-agreement-final-version-june-10-2015

In section 3, representations and warranties, subpart (b), it states that parties are committed to beneficially using the water. "The Value Study Workshop led by the Bureau of Reclamation last week confirmed the $1 billion estimate for construction, operations, maintenance and replacement costs."

She noted that even "phasing of the diversion will cost three times more than the AWSA subsidy of $100 million."

"I've heard the justification that we need to sign on to the JPA to support irrigators in the Cliff-Gila Valley," Siwik said. "I agree that we need to improve the reliability of water delivery for irrigators, but I don't support building a billion-dollar diversion and expecting taxpayer to pay for a project that primarily benefits Freeport-McMoran, which owns 70 percent of the land and water rights in the valley. It owns about 11,000 acre-feet of water rights in the valley and nearly half of them are unused every year. This project is too expensive, and there are lower-cost alternatives to help irrigators."

From section 5 (s), she noted that once the AWSA funding is expended, "that's it from the ISC (Interstate Stream Commission) and the state of New Mexico. Who picks up the tab of $700 million to $900 million, according to the estimate of the value study? This is ISC's way of saying: 'There's no free lunch.'"

"I have also heard the justification of having a seat at the table," Siwik said, "but ISC controls the budget. It is driving this train and will continue to push through its misguided plans and force southwest New Mexico communities to pay for it.

"The biggest travesty is that the JPA slams the door shut on using any AWSA funds for non-diversion alternatives," she continued, reading from section 3(e) that any funding "shall be used exclusively for diversion and storage. We can fully fund all the non-diversion projects with this money, but this JPA takes that opportunity away."

She concluded with "please disapprove this resolution," which was met by long applause from the crowd.

Donna Stevens of the Upper Gila Watershed Alliance said the group sees many compelling reasons not to approve the JPA. "There are so many unknowns, such as the quantity of water and the impacts on the ecology of the river. Who's going to pay? With $100 million from the AWSA that leaves $900 million for taxpayers. The JPA says each member will provide as they are able. The word 'may' is substituted for 'shall,' so the ISC kicks the can down the road. The JPA acknowledges that without local support the project cannot happen. It will bankrupt us and may provide little water. Who will buy the water? The irrigators? What kind of legal crops can they grow to pay that much?"

She said the withdrawal clause was not really an escape clause. "It's not too late to not sign this JPA."

Hueteotl Lopez noted that the Silver City Town Council unanimously voted down the JPA. "I was pleasantly surprised to learn that commissioners Kasten and Hall had not made up their minds. I'm thankful they are here to listen. The only person with his mind made up is Anthony Gutierrez. Some people get bought out by power. Is there a potential conflict of interest? Does he want to be head of the CAP Entity?"

Patrice Mutchnick read from her daughter, Ella Jaz Kirk's words when she petitioned to the New Mexico governor and legislators not to divert the Gila River.

[Editor's Note: Ella Jaz Kirk was one of three talented Aldo Leopold Charter School students killed in a small plane crash in 2014. Emotions ran high in the room as her mother read her daughter's words.]

"She was against a diversion," Mutchnick said. "She wrote: Here's how it works: you divert water from a stream or river and the ecosystem and wetlands (which are nature's purification systems) are degraded to a level where they disappear or no longer support a river system. This creates a situation that is unsustainable. You may be getting a temporary flood of drinking water but because you degrade the wetlands and stream health you destroyed the watershed and you will have no water in the future. You are thwarting nature so cleverly only to be rewarded with a system beyond our petty human control that collapses in on itself and us.... We can't drink from our rivers at this point, they're just too important.... I have said, 'There is a chance;' at least I believe so, if we can look at watersheds as preservers of the peace, as filterers of the water, and as assets to us. Keeping a healthy watershed is useless without limiting our growth and becoming more sustainable in other ways just as sustainability is impossible without a healthy watershed. Though it may be hard to transition to a sustainable lifestyle of limited growth and renewable resources, it's mandatory if we want to continue on this planet for a little while longer and leave this good Earth alive, after we are gone.

"Now I ask the people who want to divert the Gila River, it is worth the water?" from Ella Kirk's words at http://ellajazkirk.org/words-music/worth-the-water/

Her mother continued: "For myself, this agreement is so flawed it is impossible to understand. To get a buy in, you need to make a decision for rational thinking. We are all in this for better or worse. Commissioner Ramos and I were looking over the Upper Box. I asked him if he could see it as a construction zone. He said: 'Whatever it takes.' Ella Jaz said she wanted to live in a better world where there doesn't need to be an environmental movement."

Guadalupe Cano, Silver City District 4 councilor, said she spoke for the residents of her district who "overwhelmingly oppose this JPA. You mentioned a seat at the table. We recommended the city manager continue to negotiate."

Sara Boyett, representing the Southwest New Mexico Chapter of the National Audubon Society, said the organization was the first chapter in New Mexico, founded in 1968, as a result of the threat by Hooker Dam. "The Gila Valley looks the way it does because people have sought to bring balance. It's not entirely true that the river is the last free-flowing river in the state, but it shows its importance. Other slogans you hear are: 'It's New Mexico's water." No, it isn't. It's Arizona's. New Mexico is the junior rights holder."

[Editor's Note: The AWSA ensures that the rights to the water that can be diverted and paid for through the exchange, according to the Act and the Consumptive Use and Forbearance Act, is senior to other water rights holders.]

"You hear: 'We want a seat at the table.' That is illusory, as there is no table and there won't be one" Boyett said. "The CAP Entity will not survive. It will either self-destruct or won't last past November when the Secretary of the Interior pulls the plug. Do not spend the money on litigation and more studies. The era of big dams is over.

"I want to honor someone who is the best of the past and looking to the future, Dutch Salmon," Boyett said.

"I wasn't expecting that," M.H. "Dutch" Salmon, said. "I am against the agreement but there may be possibilities for other uses of the river.

"Were the ISC an advisory body rather than an imperious slice of state government we might could achieve something radically good along the Gila- a minimal perennial flow to protect the river's unique ecology and recreation opportunities," Salmon said, "a new style Rosgen flow-through irrigation system to benignly divert a fair amount for agriculture, while retaining the instream flow; a controllable system which can satisfy the CUFA; all this being a low-key affair that looks to spend a good deal less of the federal subsidy that is available for this project, leaving those dollars for non-diversion alternatives; as previously portrayed by the GCC and others. And all this by way of getting rid of the big diversion idea and getting the machinery and plan out of the Upper Box.

"Problems?" he asked and answered. "Plenty. The alternative may have trouble satisfying the CUFA protecting downstream users; the water may be too pricey for agriculture; most of the water rights are owned by Freeport-McMoran. Topper (Thorpe, farmer in the Gila Valley) may balk at being known as a lavender farmer; but the biggest obstacle will be the rogue ISC itself who are devoted - the staff at least - to their big project regardless of inefficiency and cost, who will doubtless insist on blasting rock and making tunnels for pipelines you could drive a truck through; conveyance canals with the 'footprint' of a four-lane highway. They want an offstream impoundment that will evaporate as fast as it seeps into the ground."

"Lots of problems all right but some possibilities too, and we'd just as well consider them and start talking, as it is apparent a JPA will be formed, financially broke and ineffectual to be sure, but dangerous nonetheless due to the ISC, which really ought to change its masthead and colophon from a stream motif to a smoking D-8 Cat," Salmon concluded.

Janet Wallet-Ortiz, Silver City resident, said the JPA "allows for new taxes to pay for this boondoggle. By rejecting this JPA you will show support for sanity. The federal funding would cover all the non-diversion alternatives. There is no guarantee and no water to divert. The damage to the environment will mean tourism and recreation will be gone.

She suggested the commissioners listen to Assistant Town Manager James Marshall, who says there is no protection for the burden of huge unknown costs in perpetuity. "The ISC remains in total control of the reimbursements. There is no money for administration or litigation. There is no business plan and no analysis of present or future customers. (Robert) Scavron (Silver City attorney) said the JPA is a fatally flawed document filled with misrepresentation. He said any public official who signs it should be charged with official malfeasance. Grant County could go bankrupt. Do the right thing for Grant County citizens and do not approve this JPA."

Starr Belsky, Silver City resident and former business owner, said she was a former technology editor for Brookings Institution.

"There has been an analysis of benefits done by Steve Piper of Reclamation, and the costs exceed the benefits," Belsky said. "Is this JPA a legal document or not? Scavron did his due diligence. I hope the commissioners will tell other entities not to sign this. Who are the deep pockets? Who is responsible for paying the costs? This document gives discretion to the county to what degree? You commit the city, even though it does not join the JPA, right? To enter into this contract without the intent to cover all costs may be in bad faith."

Luis Quiñones of Las Cruces, who said he was a former resident of Grant County, said he saw the mine waste on his drive to Silver City. "My favorite teacher at Cobre, was Mr. Kasten, the chairman's father. He was angry one day about the waste and said; 'One day, our people will pay.'"

Quiñones talked about the beauty of the Kneeling Nun, the rolling hills, mountains and wilderness. "Nothing is more beautiful than the Gila River. Will we leave our children what is beautiful or go in the wrong direction? I don't want what happened to the Rio Grande to happen to the Gila. I ask you to vote against this JPA."

Mary Burton-Riseley, Cliff-Gila Valley resident, said when she first moved to Gila on the river, there was a lot of conflict in Catron County, "but in the Gila Valley there was a lot of cooperation. I own two acre-feet of water rights in the Upper Gila Ditch. With water sharing, we have been able to grow vegetables. If we have a canal or a pipeline it will wreck the visual beauty. We will all have meters and it will destroy the neighborliness."

Cynthia Bettison, Silver City Councilor District 1 and a professional archaeologist, said the proposed site for the diversion is "chock full of archaeological sites on the Registry of Historic Sites. Before any work begins on a diversion, NEPA (National Environmental Protection Act) and archaeological mitigation has to be done. It's expensive. I don't think the cost analysis reflects it. It will take years for the mitigation. Some things that started in the 70s and 80s are still going on. In District 1, my folks asked me to reject the JPA, which I did on Tuesday. I hope you have had a chance to review our meeting, as well as the comments by Marshall and Scavron. You can enter into the JPA, but you can't leave. If you leave, you lose only one vote. There seems to be an out, but there really isn't."

Jeff Boyd, resident, reminded commissioners that if the county joins the JPA it is subject to the majority vote of the parties. "Grant County is by far the richest. The other three counties together barely surpass Grant County. Will they depend on Grant County to pay?"

He continued that, based on water usage, Grant County is a distant third. "They use four times as much water as Grant County, so will each county receive an allocation of water?"

Boyd alleged "flimsy liability protection. It looks like Grant County would take the risk with the greater liability. If everyone cut seconds off their showers, it would save a billion dollars."

Ralph Dominguez said his family is still in ranching and farming in the Gila Valley. "I stand here to speak in favor of joining the JPA. In my opinion, as a resident of District 4 in Silver City, we do not stand overwhelmingly against the JPA. I continue to support my family, which gets water from the Gila River."

He compared it to a bullfight, asking: "Will the fighting cape be used to distract the bull, so the fighter can kill the bull? The intent and purpose of most of those here is to keep water flowing down the river. Our intent is, if we want to grow, we keep the water. Think of those individuals who are not here-our children and grandchildren. If we do not keep this water, it will be a disservice to them, and if you let this water flow to Arizona without using it."

Ronnee-Sue Helzner, resident, said she has been involved with the AWSA since its inception. "Whether you agree or not with the proposals, I think the JPA is a dangerous document. It has inadequate protection and only lets signatories have access to funds. Can a group later become a signatory, if someone comes up with a good project? The proposed project requires money beyond the AWSA funding. This JPA gives the ISC authority to reimburse. If eight groups let them and if we have good projects, we can find other funding. The JPA might work if it only addressed the AWSA funding for non-diversion projects. I recommend conserving the project fund. Can you clarify the transfer of authority from the Secretary of the Interior? These are not just personal views, but professional views."

Kyle Johnson questioned the competence and capacity of the bodies under the JPA. "For context, the conference center sits incomplete. When this building was renovated it caused the finances to fail so the state had to take responsibility for the finances, because this single building crashed the finances for only $200,000 or so. And they want to manage $700,000. The geology is not addressed. It could cost up to $1 billion. In the four-county area, there are about 60,000 people, half of whom are in Grant County. It's saddling them with a $1 billion project. They haven't addressed cost overruns. We could have saved 20 percent of the water available in the past 70 years in three years. Sixty thousand people are taking on $1 billion in one of the poorest areas in the state. What investor is going to put a billion dollars in for a drop of water in the bucket? Investors will tell you anything, but they will want a guaranteed return, water or no water. It will be backstopped by the taxpayers. It becomes a confluence of forces, with urges toward privatization of water by a company in France or Southeast Asia. I would like you to state the other eight groups. I urge you to vote against it. It is within your power to drive a stake through the heart of this."

Tom Vaughan, resident, said he been watching from the sidelines as an old fed and an old newspaperman. "It's a pig-in-a-poke. They will do a study down the road. The fix was in by the ISC and they are going to get it done one way or another. I appreciate the time you're spending listening to us. The mitigation of the archaeology will kill it. The pig-in-a-poke has become a skunk-in-a-sack."

Andy Payne said it was the commissioners' job to protect the people of their community. "If you sign this, it will be the opposite. You will be signing a blank check. You will have one vote out of nine or one vote out of 19, yet you are the player with all the money, and you can't easily withdraw. You can withdraw your vote, but you will still be committed to the money. Don't vote for it."

An unidentified person said the only one that would benefit would be Deming. "Besides your benefit for the future generations would be to rob them of recreation. I have rafted the river, and I want to take troubled youth to see what life is like. You will destroy the river. I want to take wounded warriors and plan on guiding them down the river before it's dammed."

Stephanie Smith, co-leader of the Great Old Broads of the Wilderness said everything being said is "so moving and right on target. If it looks like a rat, smells like a rat, don't feed this rat."

Jason Amaro of Trout Unlimited said, as a sportsman, he has rafted, hunted and fished the river. He said he looked at a topo map of the possible diversion sites. "It's kind of scary. It will require a massive amount of roads and they will fence out the diversion. For diversion site No. 2, there would be a humongous road right through the campground. Site No. 2A is another campground. You can drive through the river, but an infiltration system would put a pipe in the bed of the river and you probably will not be able to cross. It will keep access down, which is my biggest concern. It will not be as floatable, which is one more way of losing access. Please vote against the JPA. If you vote for it, I will fight like heck to keep sportsmen access."

Carol Beth Elliott said she has rafted and backpacked along the river. "One speaker so far has been firmly in favor. I hope your constituents are telling you to vote for this. Someone made the comment, 'our water.' But it's Arizona's water and we have to pay for it."

Linda Pafford of the lower Mimbres said she wanted to go on record that she is against the JPA agreement. "It's a boondoggle. Paying for something in perpetuity is the definition of boondoggle, I think. It's blackmail. More water is not guaranteed. The money promised for conservation might disappear. There are eight others, when they are left alone, they may leave."

Tom Manning said the ISC tried to keep yield a secret, but it was accidentally released. "They have said, they may need a second diversion to get the amount. It's not an open process. You expressed it was give you a voice. I think the strongest voice is to say; 'No.'

The commissioners moved into recess before hearing from staff and the commissioners themselves.

County Planner Anthony Gutierrez spoke after the break.

"We went into details on Tuesday," Gutierrez said. Visit http://www.grantcountybeat.com/news/news-articles/22588-grant-county-commissioners-wrestle-with-cap-entity-jpa-decision for details on that meeting.

"I've been writing notes," he said. "I'm in agreement with several items. Reclamation did a value study and I was able to see how engineers and Reclamation did the cost analysis. They didn't do any value benefit, and didn't vet the overall benefit. There could potentially be more contingencies. The $700,000 could be $1 billion.

"Reclamation does add 107 percent contingency onto cost analyses," Gutierrez said. "It's done by several engineers developing tunnels to convey the water and for reservoir stability. All costs are doubled and plus to permit overruns.

"Several have talked about whether entities will be forced to pay," he continued. "NEPA has to be done. That's why the order of things. The first item was to send the intent to divert to the Secretary of the Interior. That was done last November. The second item is to create the CAP Entity by Nov. 23 of this year. The town of Silver City chose not to be part of the Gila/San Francisco Water Commission JPA, because the intent of the GSFWC was to divert.

"The ISC thought the best way to do the CAP Entity was through a JPA," Gutierrez said. "You have discussed that it is not a perfect document. Attorneys from ISC, Catron County, the GSFWC attorney Pete Domenici Jr. and our attorney made recommendations. The JPA gives discretion to each governing board to invest or to get out, but if you get out, you have to pay what you said you would.

"Dutch talked about the Rosgen structure," Gutierrez said. "I agree that is a good option. And to Mr. Lopez, I want to make it clear I am not looking for a new job. I am a representative of Grant County and as the chairman of the Gila/San Francisco Water Commission. Four of the entities that have joined are irrigators. We had a tour of the sites and the farmers could discuss the use of the water. Now it is a water share system, and no one gets his full water rights to use. The farmers are willing to take a chance to get value-added crops. I gave insight at the Value Study Workshop that where they want to divert is where people want to recreate. They don't know the area. A lot of people here are not being represented. I represented them at the Value Study.

"The man who rafted in mid-May, can't do that anymore," Gutierrez said. "There's not enough water. I grew up in the valley, and I used to see value-added crops. There is a lot of value in researching projects to benefit farmers. We are trying to satisfy a demand. The regular system is to drill a well. But any groundwater diversion has an impact on surface water.

"Back to the JPA, this is the next step in the process," he said. "We tried to put protection in place for the governing bodies. I gave insight at the Value Study workshop that we need to look at less expensive projects.

"Eight thousand acre-feet safe yield is twice what Deming and Silver City use," Gutierrez noted. "I am certainly not in favor of a big diversion to mess up my fishing hole up Turkey Creek. Without a voice, we cannot say we don't want that project. The CAP Entity will have ownership of the New Mexico Unit. The current description of a unit is vague and leaves room for engineering and the environment. It leaves flexibility to build something we can afford. I don't think anyone will agree to a $1 billion project. My opinion is that it is best to have a voice."

Commissioner Gabriel Ramos said he has being seeing things on Facebook saying that the reservoir would be fenced off.

"The potential for fencing depends on whether it needs protection," Gutierrez replied. "The structure has to allow the passage of 150 cubic feet a second. There are potential alternatives, but there is not a final project. There is potential at the mouth of Broad Canyon, downstream of the campground. When I said people like to recreate at the workshop, they started looking at alternatives. The first site was Spar Canyon as a potential reservoir site, as one of the Phase 1 costs. Why should we run a several-mile tunnel when the water is 300 yards away? Why can't we use a solar field to power the pump? The ecological footprint would be smaller. These types of projects are not on the Reclamation radar."

Kasten said the projects from Reclamation are conceptual. "Who will choose the projects?"

Gutierrez said the potential for a project would be identified and told to the Secretary of the Interior. "I think the secretary thinks southwest New Mexico doesn't need a billion dollar project, and I agree. Phase 3 costs are to take water to Deming."

Ramos said he thought water crossings would no longer be allowed because the Travel Management Plan had closed those roads down.

Commissioner Ron Hall said he had asked a lot of questions at the Tuesday work session. "I wish this group had been here to hear them. As a former police officer and judge, I like to hear both sides. As Mr. Gutierrez was speaking, I saw a few people laughing. That bothers me."

"I have talked to many people," Hall said. "I have been able to have a better idea of what questions to ask. The staff will tell you I was negative on this JPA until I heard lots of comments. If we don't go to the table, we don't have to worry about it. I, too, like many of you, feel a personal connection to the Gila River. I don't want someone else to make a decision, without my input and the county's input."

Kasten said he assumed the value-added studies were done on certain projects. "This agreement doesn't bind us to any of them, right?"

Gutierrez said; "No, but at some point, the CAP Entity has to decide on a project."

"Does this JPA give taxing authority?" Kasten asked.

"No," Gutierrez replied, "but it does give bonding authority, but you have to have a revenue source. You can't bond without identifying a revenue source."

County Assessor Raul Turrieta said any taxing authority would have to go for a vote for a mill levy.

"The county's only taxing authority is through a mill levy or gross receipts tax, right?" Kasten asked.

County Manager Charlene Webb said: "Yes, but the only gross receipts tax left without a referendum is a one-twelfth, which would raise about $300,000 a year. My recommendation is not to give that up. It is your only remaining way to address an emergency."

"If we choose to vote for the JPA and for a section 6(d) representative, could that representative bind the county to any financial support?" Kasten asked.

County Attorney Abigail Robinson said: "No. The representative couldn't sneak off and commit you. The commission has the final authority."

She named the members that have signed on to the JPA. The ISC is a non-voting member, and the others are Catron County, Hidalgo Soil and Water Conservation District, the Upper Gila Irrigation Association, the Fort West Irrigation Association, the Gila Farm Irrigation Association, the Gila Hot Springs Irrigation Association and Luna County.

"It only take three voting members to keep the CAP Entity going," Robinson said. "If there are only two, it will dissolve. There are already enough now to move it forward. The next step is Department of Finance and Administration approval. It's already in motion. That's why we keep saying if we want a voice, we need to approve it. The ship has sailed."

She said the county, if it did not approve it today, would still have an opportunity to join. "The parties that have joined would have to approve by two-thirds vote after DFA approval, and it would require additional DFA approval."

Kasten asked if there were any way to amend the JPA. "I've been an active critic of this document."

"It wouldn't be easy," Robinson replied. "I made some recommendations which were corrected. It would take a unanimous vote of the members. If you are not a party, no vote on the amendment, no vote on a diversion.

"You would only be obligated to what Grant County obligates you to," she said. "The JPA does not obligate you. If you do obligate a pledge, you have to stick with it. That's why you need to be involved to write the bylaws. The separation of entities is by the enabling act of the joint powers statute."

"I have always said I would do whatever it take to keep the water in Grant County," Ramos said. "For our children to have water. I know people are looking for us to fail. Las Cruces owes a lot to Texas. Phoenix and Tucson are wondering where their water will come from."

"Grant County has the authority to join this agreement," Robinson confirmed.

"I don't have any personal gain with this agreement," Gutierrez said. "I'm not a farmer, although I represent the farmers and the commissioners. I am appointed to this position. It has cost me a lot of time and money, because I often travel on my personal dime. I have no personal gain."

Hall moved to approve the resolution; Ramos seconded it and it passed unanimously with three ayes.