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Category: Front Page News Front Page News
Published: 29 September 2015 29 September 2015

By Mary Alice Murphy

Despite public comment to the contrary, and little discussion among New Mexico Central Arizona Project Entity members, the New Mexico Unit Agreement, after about a month of frequent negotiations, was approved in a unanimous vote of those present. Only one member, Ryan Jameson, representing the Fort West Ditch Irrigation District, was absent.

Norm Gaume, retired professional engineer, asked to speak during public comment for more than the allotted three minutes. Entity members agreed to let him speak longer.

"I have substantive things to say,"Gaume said. "I want to thank the chair for her prompt response for information. I think it's very important for this group to be as transparent as possible, by making documents available. It's in sharp contrast to the ISC (Interstate Stream Commission)."

 

He noted that he had paid for his own airplane ticket to Grant County and was not being paid by anyone for his comments and work. "It's pro bono." He said he was an expert and listed his credentials, which include the former directorship of the ISC when negotiations on the Arizona Water Settlements Act were beginning and ongoing and his later work as a water resources planner.

"The real thing that has motivated me is that in my late 20s, I became interested in the wild Gila River," Gaume said. "I hear from people who say the river has diversions on it. There is a wild, undisturbed run from the Forks East and West Forks) to Mogollon Creek. I have run it; I have been stranded on it by high water and did not ask for rescue; I know the river.

"I know you members are doing your best," Gaume continued. "Good government is being honest. Dishonesty is a disgrace. You're in a position to fix this. I want to see the monies (allocated by the AWSA) used for the public benefit of the four counties. You should spend wisely, so you minimize the expenditures on the pipe dream of a diversion. You have about $85 million available for beneficial projects."

He said he had been forced to sue, because the contracts the ISC had let were illegal, according to procurement statute. "The judge ruled the contracts with Bohannon Huston Inc. and RJH were null and void because they were against statute. This applies to all contracts done by the ISC."

"I'm a water resources professional. I've been 40 years in the business," Gaume said. "I know the hurdles you face. I would like to make my expertise available to you at no cost. You are the victims of ISC dishonesty. A project up to a billion dollars? I know you don't support it. What you have as legally divertable water, according to RJH, is maybe 1,000 acre-feet in storage if you can line the storage sufficiently, which will be very expensive.

"In my professional opinion, because of climate change, you will lose the ability to store extended snowmelt events in March and April," Gaume continued. "All high yield years on record have had extended snowmelts in March and April. You might still get an occasional one, but not every year. They are a thing of the past.

"The ISC has left you with failed deals," he said. "The New Mexico Agreement you are about to discuss doesn't have what you need to have. The ISC has left you with a failed timeline. The record of decision is to be made by 2019, but it can be extended to 2030, if it is at no fault of the state of New Mexico that it was not completed."

He said he would be gentle in his blame of the U.S. Bureau of Reclamation. "Mary Reece, program development division manager at the Phoenix Office of the U.S. Bureau of Reclamation, said in 2008 that there would be no surprises in NEPA. You don't have a project for NEPA. And only four years are left. She also has said that the cost per acre-foot for the exchange of water from the Central Arizona Project would be $156 per acre-foot. Next year, that raises to $161 and will be $196 by 2020."

"This water will be incredibly expensive," Gaume alleged. "It has been said that the CUFA (Consumptive Use and Forbearance Act) made you the senior water rights holders. That is not true. You can divert the water only if it is paid for ahead of time and banked, if the San Carlos Reservoir is at a certain level and if the downstream senior water users have their full allotments. The fact is that you have the most junior right on the river."

He alleged that some ISC members thought the proposed project made no sense, but they didn't speak publicly about their opinions.

Gaume noted that the Reclamation Value Study was supposed to be public in August to see if the project "pencils out. It's not out yet."

"You may have other ideas," Gaume said. "My concerns are on how much money will be spent. Make sure the funds are properly spent. The AWSA is good and, after the $5 million the ISC has spent, you have $85 million left for you to spend to meet water supply demands in the area. You can fix all the ditches, all the existing diversions, and the water systems.

"The CUFA is horrible, stupid," he continued. "I am from you. I grew up in Deming. My relatives would say: 'What stupid bureaucrat came up with this?' about the CUFA. Do your due diligence on why Bill Evans Lake works and why the CUFA won't."

He noted an article by Adrian Oglesby in the Natural Resources Journal that talks about an irrigation district on the CAP in Arizona, which went bankrupt buying water. It was the first bankruptcy of an irrigation district in the U.S. "They could not afford the $60 an acre-foot at the time. "

"You have no ability or willingness to pay for the water," Gaume said. "You have the ability and willingness to play, but don't waste the funding. You need to decide where to put the money."

He said the New Mexico Unit Agreement supplemental terms should have put the New Mexico CAP Entity on notice about the requirements. "It should say before the federal government does anything, you have to come up with a feasible project. The rights you have today for direct delivery and the delivery of storage water should be separate. The storage water will have to be administered, metered and accounted for. If you like your laissez-faire way you've been doing, you won't like a federal project. That you don't have to show feasibility before NEPA should be in the supplemental terms. There are conflicting requirements in the CUFA."

"I'm sorry. I get cross when I talk about this," Gaume said. "I would like to help you at your request."

Allyson Siwik, Gila Conservation Coalition executive director, had a request. "I'm wondering if at all possible during the New Mexico Unit Agreement discussion, if we could ask questions."

Mary Burton Riseley, co-owner of three acre-feet of water rights on the Gila River, said she had had two experiences lately. "On an expedition to the bird area, we passed the Freeport diversion. We stopped, and we noticed that water goes around the diversion. We also noticed the high fence with razor wire around the diversion. When Todd Schulke (of the Center for Biological Diversity) took us to the designated project area, we stood under the gorgeous cottonwoods, willows, and alders near Turkey Creek Campground. Imagine a wall and a tunnel right there. There would be a fence, razor wire and guards with guns. Think about the river. Think about Turkey Creek Campground, which is a take off point for river runners, outfitters in the forest. It made me weep."

Entity Chairwoman Darr Shannon, who represents the Hidalgo Soil and Water Conservation District, asked the members if they would be willing to allow Siwik to speak.

Anthony Gutierrez, Grant County alternate to the entity, said he would anticipate if the entity members were allowed to ask first, it might answer some questions. "It was a pretty difficult task and we had a lot of legal questions to get this completed. I don't want to see hurdles or to get bogged down."

Shannon acknowledged those who worked on the negotiations, including Vance Lee of Hidalgo County, Gutierrez, Luna County Manager Charles "Tink" Jackson, Allen Campbell of the Gila Hot Springs Irrigation District, Deming City Attorney Jim Foy, Howard Hutchinson of the San Francisco Soil and Water Conservation District, Attorney Pete Domenici Jr., and ISC representatives Attorney Dominique Work, Craig Roepke and David Anderson. "Especially Work," she said.

"Do the members have any questions?" Shannon asked. When no one had any questions, she said: "I see your trust in the negotiating team."

Gutierrez noted the negotiations were not only between the Bureau of Reclamation and the team, but the items were also taken to the Reclamation Office for input. "There was a lot of give and take on what was acceptable."

"I will allow Allyson to ask her most important question," Shannon said.

"I was surprised to not have comments from the other commissioners," Siwik said. "It would help if someone could provide a summary. I don't know what's new."

Shannon said the team spent hours and days going back and forth. "This is the document arrived at in the end, so it is not red-lined." She noted the final document was sent to the entity members last Friday, so they had had three days to read and study it. She asked Reece if she would be willing to give a summary.

"New Mexico Unit Agreement is three parts," Reece said. "The first eight sections are directly from the CUFA, with no changes. Section 9 has the supplemental terms, and the New Mexico Unit description is added." Section 9 terms are all terms focused into getting the unit into working within the federal process."

Work said the final additions included adding the date of the entity's joint powers agreement on the first page, adding the contacts on page 12, and a description of the unit at the end. "The supplemental terms were from Reclamation and from this entity. They reached agreement on them. If the agreement is approved, I will recommend the ISC approve it at their Oct. 16 meeting."

Wendell Hann of the Gila Farm Irrigation Association asked Work about the fact he had seen nothing in the agreement about the EIS (Environmental Impact Statement). "Ms. Reece had mentioned there is the possibility of a no-action decision. What is the responsibility of the New Mexico CAP Entity if there is no action?"

Work said the document did not go into that kind of detail. "This recognizes that no action is a possibility. There is also the possibility for this entity to be part of the NEPA process and have a seat at the table. So many things can happen."

Gaume noted that the no-action alternative would come after years of study and expenses of $30 million to $40 million. "You would have the same choices you have now. Only a diversion requires NEPA compliance. If you waste that much money, you will have the same set of choices, except the New Mexico Unit will be foreclosed."

The next agenda item was the discussion/approval of an investigations/option subcommittee. Foy said he thought the group needed a subgroup to investigate options to finance or deal with issues that will arise. "Put them on the agenda each month and let them tell you what they did or didn't do."

Domenici, who was present on the phone, concurred and said what they had in mind was a good summary each month.

Shannon appointed Lee, Jackson, Aaron Sera (Deming city manager), Campbell, Hutchinson and Gutierrez.

The group members discussed for approval a request for proposal for attorney services. Shannon said the RFP was created by the second fiscal agent—the city of Deming.

"Do we need the contract for legal services to coincide with our fiscal year budget?" Shannon asked. Sera said no.

Gutierrez said he had a question about the proposed fee schedule rating. "I think the top requirement for legal services should be based on their experience."

Lee asked who would evaluate the services. Sera said an evaluation team should be appointed at the next meeting to work with Deming's procurement officer. "I want input on the selection criteria placeholders."

Sera agreed with Gutierrez's comment that experience and interviews might be the most important criteria. Interviews were added as a third criterion.

Sera asked the evaluation team to come up with interview questions. He asked for input on the scoring. "We will still have the right to negotiate."

After discussion, it was determined that experience should be scored out of a possible hundred, the interview out of 100, and the fee schedule out of 50 points.

After a motion was made to that effect, Sera asked to make a friendly amendment, that the contract could be terminated with 90 days written notice. The amendment was approved, and then the original motion with the amendment was approved.

Lee asked how the position would be advertised, and Sera said in the four county local newspapers.

A non-action discussion took place on a memorandum of understanding between Deming, as the second fiscal agent, and the ISC as the first fiscal agent. "We will send by the end of today," Sera said. "I'm sure it will bounce back and forth. It's on how we will handle large expenditures. We propose that Deming will invoice and send it to the ISC, and then when it is approved, Deming will write the check. I'm not sure that this is OK with the ISC."

The next meeting has been changed, due to a venue conflict. The next regular meeting will take place at 1 p.m. Wednesday, Oct. 14, at the Grant County Administration Center.