By Mary Alice Murphy

At the New Mexico Central Arizona Project Entity meeting held at the Grant County Administration Center on Sept. 15, after changes to and approval of minutes, the members heard public comment.

"I admire and respect all of you in this project, but I've been at this myself since 1982," M.H. "Dutch" Salmon, Grant County resident, said. "I've seen three proposals for big Gila River water project, with much better credentials than this one, nonetheless die a natural and well deserved death; enough to know that this one is certainly doomed.

"But the New Mexico CAP Entity, which includes the ISC, is like the drowning man, who's treading water and losing his life just 10 feet off the bank, and he's too proud to call for help or simply come ashore," Salmon continued. "Even when thrown the metaphorical life vest in the form of non-diversion alternatives, the Entity would apparently prefer to go permanently under water, taking all the millions in funding with it.

"Before the subsidy is frittered away on an untenable dream, I urge you to come ashore and join with the rest of us in securing a sensible water future for southwest New Mexico," he concluded. "I respectfully ask you to reconsider what you're doing."

Claudia Duerinck, Gila resident, said she, too, wanted to assure the members of her respect for all of them.

"In regards to the pending bylaws," Duerinck asked," Can you put something into them to prevent phone texting during the meetings. It can be construed as a meeting within a meeting or as a violation of the Open Meetings Act.

"The New Mexico Unit Agreement is dated Oct. 21, 2005," she continued. "Why has it taken 10 years to get to this point? A large amount of money has been spent. Why is it so late, without any clear guidance? Who would be so foolish to sign a legally binding document, when you don't know what you're going to do? You have been led down a path to a gigantic unit that is certain to cost more than we have. You get an extra allotment of water if it's available, if you are willing to pay for it, and you cannot harm downstream users to take water from another river that has an uncertain future."

Allyson Siwik, Gila Conservation Coalition executive director, asked about the supplemental terms to the New Mexico Unit Agreement. "We haven't had an update on these supplemental terms, and I notice they are not on the agenda. I understand it is a subset of the entity negotiating. I hope the majority of the group and the public can get an update. We're in the dark on what's happening."

ISC Attorney Dominique Work explained she had received comments on the bylaws at the last meeting and since. She emailed on Friday to the CAP Entity members the latest version and requested the bylaws be gone through page by page. Most of the changes that the members had discussed at the meeting and made since were accepted. They included removing the location, as it might change; making travel to meetings the responsibility of the member and/or his or her entity, so that NM Unit Fund monies are not expended, except if the travel is extraordinary and pre-approved by the membership; changes to how a member may be removed from the Entity; clarified language on several pages; made it possible for only the representative, not the alternate, be elected to a position; removed the location in another place, as it is in the Open Meetings Act; added a voting section clarifying quorum and that if the vote is a tie, the motion dies; and putting in 30 business days lag time for member entities to consider financial commitments.

Ryan Jameson, representing the Fort West Ditch Irrigation District, asked if a clause needed to be added to allow members to go back to the entities they represent before voting on issues.

Work said each member was chosen by his or her entity to represent the entity. "If you need time to talk to your entity each time, I think it would make business untenable for this entity. Discuss it with them ahead of time. It's on the agenda each meeting at least four days ahead."

To a proposed change to have an executive committee choose the executive director, it was made clear by Van "Bucky" Allred that he thought the whole membership should choose the executive director.

Jameson said he had a concern that the second fiscal agent, by the language in the bylaws, would be able to choose staff.

NM CAP Entity Chairwoman Darr Shannon said she didn't think it said that, but merely stated that the second fiscal agency must follow state procurement and other regulations.

Work said the portion on hiring policies could wait.

The bylaws were approved as changed. Work said she would make the changes and have the bylaws signed and forwarded to each member.

Shannon read the New Mexico CAP Entity resolution approving the budget submitted at the Sept. 1 meeting. It was approved unanimously.

She, for the next agenda item of hiring an attorney, read a proposal that through procurement and a request for proposal process an attorney be hired. Temporarily until the RFP process is completed, she proposed creating a professional services agreement with an attorney not to exceed the $50,000 limit.

Jim Foy, Deming counsel, said he had been assigned to help Deming in the second fiscal agent process and represents the City of Deming. "Aaron Sera, clerk and city manager and Jim Massengill, alternate representing Deming, tasked me to work on the contract with Reclamation. At this juncture, the contract is not acceptable in their red-lined version we received yesterday. We will meet with Reclamation and will need to put forward our disagreements."

"I think your hiring of an attorney is imminent," Foy used the word imminent three times. "I think the CAP Entity should have its own attorney... now. My recommendation is to give the chair authority to enter into a contract with an attorney as soon as possible. And get the RFP going as soon as possible."

Foy said he would create the draft memorandum of understanding as soon as possible. "I will also request a special meeting."

The motion, which Vance Lee, representing Hidalgo County and the village of Virden, had made, and Allen Campbell, representing the Gila Hotsprings Irrigation Association had seconded, was amended to allow the chair to sign the MOU.

Work said, when she receives the MOU draft, she would make it her No. 1 priority. "The budget is on the agenda for the ISC meeting on Thursday."

Under non-action items, Shannon said she felt no urgency for an executive director at this time. "As of right now, there is no reason I cannot put notices in papers and put out agendas. I propose that Lee, Anthony Gutierrez, alternate for Grant County, and Charles 'Tink' Jackson, Luna County manager become the advisory committee for an executive director. It will be for only a short period of time." Allred and Wendell Hann of the Gila Farm Irrigation Association concurred. Massengill said it would allow time to develop the job description.

"An executive director is not critical at this time, but an attorney is critical," Shannon said.

Discussion ensued on the 7 percent administration fee in the budget to be paid to the city of Deming to perform duties as the second fiscal agent.

Masengill said he had brought copies of a list of duties the fee would go toward.

"The resolution to be the second fiscal agent was approved by the Deming City Council last night," Massengill said.

Brett Kasten, Grant County Commission chairman, representing the county, said: "I think we are paying for a service, and we can demand service with this administration fee."

Javier Diaz, representing Luna County as a county commissioner, asked if the 7 percent fee would apply to a $700,000 project.

"I think larger ticket items will be taken care of by the first fiscal agent, the Interstate Stream Commission," Massengill said. "We're not in this to make money. 7 percent is low through our research."

ISC non-voting representative Kim Abeyta-Martinez said she believed the 7 percent of a big contract would be answered in the next presentation by Craig Roepke of the ISC giving an update on the 30 percent design RFP. "If the entity decides to manage the unit, the 7 percent might be an issue, if the ISC will manage it, I don't think the 7 percent is an issue. The ISC is the first fiscal agent and will pay NEPA costs," she said. "Once we get to design and construction there will be future discussion."

Roepke gave the update. "In early June, we issued an RFP for the 30 percent design. We currently have completed the evaluations of the proposals. And a representative from the CAP Entity has been a participant on the evaluations. Two finalists have been selected for interviews. Once the scores are compiled and the finalist chosen, the information will be public, but not until them. We took action because of the 2019 deadline for NEPA completion. We will probably let the contract about the same time as the signing of the New Mexico Unit Agreement. A representative of the CAP Entity will be at the table."

Jameson said he wanted a fast and quick answer to "when we will be able to have water. We have to pay for our quota one for one. How do we water bank if they are in a drought situation?"

Roepke explained that what was negotiated was that when New Mexico has obtained a Unit, New Mexico diverts and depletes the water in the state. "For every acre-foot it uses, it pays for water to the Gila River Indian Community and the San Carlos Irrigation District before New Mexico can divert. New Mexico must pay the Secretary of the Interior for moving the water into the Central Arizona Project water bank prior to diverting any water. New Mexico can build up credits in the water bank, then it can divert. Until it establishes credits, it cannot divert water."

"We can only divert at flood stage," Jameson said. "Can we prebank only when we are at flood stage?"

"No," Roepke said. "We pay to move water from the Colorado River. It comes out of Arizona's share of CAP water."

"When can we start prebanking that water?" Lee asked.

"I find no time limit on when you can bank the water," Roepke said.

"Can we bank now?" Jameson asked.

"Yes," Roepke said. "The negotiators in 1968 made that New Mexico water the senior right."

"What do we need to do first?" Jameson asked.

"Work with the CAP Authority, Reclamation and the Gila River Indian Community. You cannot divert until you have an equal drop in the bank."

"If it's going to be 30 years before we can divert," Jameson asked, "why not start now?"

Roepke said he believed people were banking water now. "It is the CAP Entity that banks it."

"What is the projected cost?" Jameson asked.

"It's, I think, $147 this year, but it goes up every year, and in 10 years it's up over $200 an acre-foot," Roepke said. "You can bank 18,000 acre-feet a year up to 70,000 max."

Jameson asked if New Mexico Unit Fund money could be used for the banking.

"There would be hurdles to go through," Roepke said.

Hann asked if the banking of water would require NEPA.

"Typically the water moving down the CAP channel is done with a NEPA assessment, not a full environmental impact statement," Roepke said. He also noted, referring to an earlier discussion, that when the ISC did pilot watershed projects for the Grant Soil and Water Conservation District, the administration fee was a bit over 5 percent.

Mary Burton Riseley, Gila Valley resident, asked if it were possible to use New Mexico Unit Fund money to pay for banking before there is a unit.

"In order to touch water in New Mexico," Work said, "it has to prebank. The only way I think is possible is if the OM&R (operations, maintenance and replacement) costs are paid ahead of time. I'm not sure, but I think the money would have to come from another source. You have to have credits first, before you have a user. I will research to answer the question."

"The perception is that the exchange costs are undoable," Roepke said. "I put together a spreadsheet. If you were to buy a water right in the Gila Valley, it would cost about $10,000 for that one acre-foot right. If you put $10,000 into a CD at 2 ½ percent over 10 years, you would have $12,801."

He said paying the transfer cost over a 10-year period would be a better deal than paying for a water right, with some money left over.

Jameson asked how long it would take to bank the maximum 70,000 acre-feet.

"It's how much you want to pay," Roepke said. "The banking has nothing to do with bypass flows."

The next meeting will be a special meeting set for Wednesday, Sept. 30, at 1 p.m., with the next regular meeting set for Oct. 13, also at 1 p.m. at the Grant County Administration Center.