By Mary Alice Murphy

The NM CAP Entity, at a meeting on Tuesday, Nov. 24, discussed the next steps toward the goal of creating a diversion of Gila River water. This follows the signing on Monday, Nov. 23, of the New Mexico Unit Agreement by Principal Deputy Assistant Secretary of the Interior for Water & Science Jennifer Gimbel, who was delegated authority by Secretary of the Interior Sally Jewell to sign it, as required in the 2004 Arizona Water Settlements Act.

During public input, Sara Boyett, Southwestern New Mexico Chapter of the Audubon Society president, said the group has more than 200 members, including 80 in Luna County and Deming. "Yesterday I sent a letter to our members, saying 'Today, we learned that the New Mexico Unit Agreement was signed by the Secretary of the Interior. The signature will continue the project into the NEPA process. It is not a green light for a diversion.' The signature came in spite of a petition with nearly 54,000 signatures opposing a diversion. It was delivered by Audubon last week. We called on (Interior Secretary Sally) Jewell not to sign the agreement."

"The Department of the Interior did recognize serious obstacles," she continued. "NEPA should provide the rejection of the Gila diversion forever. If the agreement had not been signed, it is likely there would have been lawsuits. I'm so glad the next process will give us sound science. NEPA will bring us 92 percent of the way to protecting the Gila forever."

She said history is full of ironies, because "now you will battle a national coalition of people who love the Gila and do not want a diversion."

Adam Mendonca, Gila National Forest supervisor, said: "If you make a decision to put a structure on national forest land, the Forest Service will have to sign the NEPA assessment. Any structure would have to meet our federal requirements. Eleven of the proposed sites are on federal land. We can advise, but this decision will be made at the highest level. Please include us early on as you make your decision."

Howard Hutchinson, San Francisco Soil and Water Conservation District, representative replacing Billy Webb, asked if the Forest Service would request to be a joint lead.

"We have requested cooperating agency status," Mendonca said. "If it will be on our land, we will request lead agency status."

Gerald Schultz, retired hydrologist, who worked at the USGS and Bureau of Reclamation, said the National Environmental Policy Act was signed in 1973 to ensure that the use of natural resources would not impact the environment. "It has been watered down at least three times. And the request for up to 30 percent engineering design is also a watering down. The public also needs to be kept up to date on the process, not just in news articles and on CATS, but in public meetings, such as the ones that have been held on the New Mexico 90 Bridge project. You need a special coordinator to take care of public comment and coordinating public meetings. The opposition gets the word out."

Richard Martin, Grant County resident, offered his "less than heartfelt congratulations on the signing of the New Mexico Unit Agreement. We need to put an end to western water welfare. I haven't seen any resources from this group, but you need to make sure your funds are used wisely. Ten years has been squandered. I don't see a member of the public on this board. I see public employees. We need a better way than three-minute shots for public comment. I hope you pick up the water savings opportunities. Get water to Hurley. I would also like to see Freeport on this entity as the largest private water holder in the area. Help us end western water welfare and downsize to the funding reality."

The next agenda item covered reports and updates.

NM CAP Entity Chairwoman Darr Shannon, representing the Hidalgo Soil and Water Conservation District, said the New Mexico Unit Agreement negotiating team had completed its task, as the agreement had been signed Monday.

"I want to thank the members for their time, hard work and discipline," Shannon said. "They include Vance Lee (representing Hidalgo County), Anthony Gutierrez (Grant County alternate), Charles 'Tink' Jackson (Luna County alternate), (Howard) Hutchinson, Allen Campbell (Gila Hotsprings Irrigation Association), Jim Foy (Deming attorney), Interstate Stream Commission Attorney Dominique Work, Craig Roepke of the ISC, David Anderson of the ISC, Amy Haas of the ISC, and our attorney, Pete Domenici Jr."

Shannon reported the request for proposal for legal services for the NM CAP Entity had been reissued.

The job opportunity announcement for an executive director for the entity had been released. "I have applications with me if there is anyone who would like to apply for the position."

Jim Massengill (Deming alternate) said the 30 percent design committee had been unable to schedule a time when all could meet and would be meeting next Tuesday, Dec. 1.

Shannon reported the ISC had approved, at its Nov. 10 meeting, the movement of funding within line items of the budget.

She also announced that Hutchinson would replace Webb and that Kate Fletcher of Catron County would be the alternate. Catron County Commissioner Van "Bucky" Allred said Fletcher was already his alternate and "wouldn't that be a conflict?"

Shannon said it would be a conflict. Allred said he would look at having another county commissioner be his alternate.

In old business, she asked for an update on the memorandum of understanding between the ISC and the second fiscal agent, the city of Deming.

Aaron Sera, Deming city manager and member of the CAP Entity, said the two have been discussing the issue and although it had not been completed, it would soon be done because it was on the ISC December agenda.

The first item of discussion and approval in new business addressed whether the NM CAP Entity wished for the ISC to negotiate and award the up-to-30-percent engineering design.

"How interested is the ISC in performing this?" Lee asked.

"The ISC, because of the record of decision, which is due at the end of 2019, has already put out the RFP," Kim Abeyta-Martinez, representing the ISC, as non-voting member on the entity, said. "The ISC is willing to go forward if the CAP Entity wishes it to."

Sera said he has been involved in the process and would like to move that the CAP Entity accept the ISC's help.

Domenici, who attended the meeting by phone, asked how the selected engineering firm would function with working with the NM CAP Entity. "Who would the firm report to? Who would it work with? How would it coordinate with the CAP Entity?"

"Good question," Abeyta-Martinez said. "We have had discussions on that issue. If the CAP Entity approved the ISC going forward, the members of the CAP Entity will be part of drafting the scope of work. At the next meeting, we need to determine how to manage the deliverables. We can have an MOU regarding the Entity's participation."

Domenici asked about the rough timeline.

"I don't recall a deadline for deliverables," Abeyta-Martinez said. "We won't know until we draft the scope of work and put in the deliverables."

Domenici asked about a budget.

"That will be developed as part of the scope of work," Abeyta-Martinez said.

Wendel Hahn, representing the Gila Farm Irrigation Ditch, noted that the 30 percent design is one of the critical parts, which determine the environmental impact statement (EIS) alternates. "To our benefit, we have a broad range of alternatives, including why no action is not good at all."

Domenici said he thought the MOU would have to be carefully drafted. "The key ideas may need to be in the MOU. It's a very important upfront part of this process."

Hahn said it strikes him that the cooperating agencies in the EIS, the Forest Service, the Bureau of Reclamation, the ISC and the CAP Entity "need to be in agreement on what this 30 percent design will incorporate."

Domenici said: "I agree in concept, but one of the keys is for the ISC to take direction from the CAP Entity, with input from the other parties. I don't want more parties involved. The scope of work may include input. Massengill and Gutierrez have been through this before."

Hutchinson said in the scope of work, there are likely to be environmental and economic impacts that will require mitigation. "How will mitigation be addressed in the scope of work?"

"I think the scope of work needs to include the key issues that will be addressed in the EIS," Domenici said.

Gutierrez reminded the entity members that currently Reclamation has control of the design. "I think a contract for engineering services may be premature. I think we should take that control from the Bureau of Reclamation. We have a meeting with the ISC in a week, so we will know the intent of the RFP and the scope of work."

Massengill said the scope of work would be presented to the engineers to determine cost. "It will be the engineers and the environmental consultants who will work on it. I think a broad scope is called for."

Sera said the RFP stipulated that the engineering firm would work with the NEPA process, "and we have established a team to develop the scope of work."

Helen Sobien, ISC engineer, said the reason why the ISC wants to get into the 30 percent design as soon as possible is for the NEPA process to begin to get as far as possible toward the record of decision by Dec. 31, 2019.

"I think we need assurance that the CAP Entity and the group working on the 30 percent design have control of what the project will be," Lee said.

Shannon noted that the motion on the floor was just to negotiate and award the contract.

"Correct," Abeyta-Martinez said. "But the scope of work has to be drafted for that contract to be awarded. You have the majority on the scope team, so you will have your say. But we may need an MOU to discuss the scope."

"I stated my concern," Lee said. "I think we need an MOU fairly quickly. We appreciate the quick movement on the RFP, but the CAP Entity needs a say in the project and how it moves forward. This motion, which I seconded, needs to say we will have control over the engineering decisions made."

Hutchinson said in the minutes for the Oct. 27 meeting, Reclamation engineer Jeff Riley said the project design must meet Reclamation standards.

"We're not talking about the final project," Sera objected. "Later we can take over the final design."

"When we learned about the 30 percent design, we worked with the ISC to clarify," Riley said. "The first step is to get the engineering firm. There is no way to bid without a scope of work. This is only to get the firm on board. Then as the project gets designed, from that can be federal tasks. There is no way to bid on an undefined project."

"Who feeds the tasks to the contractor?" Domenici asked.

Riley said there needs to be clarity on whether it is the ISC or the CAP Entity.

"Would Reclamation want to feed the tasks?" Domenici asked.

"We have to be involved in the bidding process," Riley said. "We need to be involved until the responsibility is taken by the CAP Entity."

Abeyta-Martinez said the CAP Entity has a budget for engineering. "I suggest you look to hire an engineer to guide you with regards to this project."

Sera requested to amend the motion to include an MOU between the ISC and the CAP Entity.

"I think you're putting the cart before the horse before you have wrangled the horse," Campbell said. "The customers, which are all the entities we represent, haven't had discussions. I see nothing wrong with getting the ability to contract until we get something concrete. I went through all the studies, which showed solutions to numerous issues. The customer hasn't made the decision on what we want."

Hahn asked if a Gantt chart had been built with the milestones.

"Yes, we have worked on NEPA Gantt charts," Sobien said. "We have several different versions. But we cannot do NEPA until we know the project."

"Is there a time identified where another consultant could be hired?" Domenci asked. "When will the NEPA consultation occur?"

Sobien said she was not prepared to answer that question.

"I do NEPA for a living," Mendonca said. "Has there been a conversation about the engineering? I suggest you consider the NEPA early. The Reclamation Value Study took some engineering at 11 points of diversion that are on Forest Service land. None would pass our requirements. If the project is not on our lands, we are not involved."

Grant County Commission Brett Kasten said the 30 percent plan is "basically a shotgun approach, so that NEPA can begin looking. A lot of projects will never work. We have to get to a point where we can decide whether a project will work. We need to hire an executive director."

Campbell agreed with Mendonca. "I do not believe the Value Study was designed in the physical realm. We can then winnow them out. We have to come up with a rough idea of what the diversion will do for us in the future, in the way of water necessities and water savings. Look at what we want. The state, federal and private land owners have to be involved."

Riley said he seconded what Campbell said. "The Value Study had a specific goal. Not every project has to be on Forest Service land."

Gutierrez said every time the county does a project, an engineer or an environmental consultant can help with the coordination of the various entities. "They do a lot of coordinating as an executive director would. A lot of research has to be done to find similar projects to what we want."

Hahn said he appreciated Kasten's comments and agreed with Mendonca. "We need an amendment to the motion to create an MOU to establish the authority, control and approach between the CAP Entity and the ISC."

The motion to allow the ISC to negotiate and award the engineering contract was approved.

Shannon presented a resolution, under new business item VIII b, which she had drafted, for the purpose of the CAP Entity to ask the ISC to negotiate and award the up-to-30 percent engineering design for the RFP contract for the New Mexico Unit.

Kasten asked if the resolution should reflect the MOU.

Domenici said the resolution could include a line that indicates the MOU is part of the resolution.

After discussion, it was decided the addition should begin with Be it further resolved, that an MOU will be executed as soon as possible between the ISC and the NM CAP Entity to establish the CAP has involvement and authority to approve the scope of work and tasks that will be implemented.

Abeyta-Martinez noted that the CAP Entity is already involved in the scope of work, but would not be involved with the negotiating and the contract.

Item VIII c was not needed, because it addressed if the CAP Entity did not approve the previous resolution, which had been approved.

Discussion then ensued on whether the CAP Entity should request a transfer of control of the design, construction, operations and maintenance of the unit.

"I am relying on the statute and the New Mexico Unit Agreement," Domenici said. "Under statute, the CAP Entity has the ability to request responsibility for design, construction, operations and maintenance or any combination of them. My interpretation is that we can request and the secretary of the interior shall transfer the responsibility.

"The second piece is what dollars come with that transfer," he continued. "There are two funding mechanisms. In Section I, what I will call I funding, is being sent to the New Mexico Unit Fund in installments. That is mandatory funding. My understanding is that the 30 percent design will be funded with that money, and so will the CAP Entity budgets. Anything we want to request to be funded will come out of these funds. We have budget requests that we control.

"Section J funding, is funding that the secretary will pay on a construction basis," Domenici said. "Two things have to happen for the funding to be made available. The first was the letter last year from the state of New Mexico stating its intent to divert. The second thing is the NEPA Record of Decision (ROD). We will have to comply with the NM Unit Agreement and the supplemental terms.

"I believe it would be better to request the design funding through the JPA process with the ISC," he said. "If we write a letter asking for the CAP Entity to have responsibility for the design of the project, we need to be able to fund it through the JPA process to utilize NM Unit Fund funding."

Abeyta-Martinez confirmed the ISC has $9.04 million arriving into the fund in 10 yearly installments each January. "As I understand it, you just approved the up-to-30 percent engineering that you want the ISC to negotiate. Once you get past the 30 percent, if you want the second fiscal agent to use the funding for 100 percent design, the state Legislature doesn't allow the transfer of funds from the New Mexico Unit Fund. The ISC will continue to pay the contractor, which would require another RFP for the 100 percent design."

"There is no surprise in that answer," Domenici said. "If we request design authority the only way to fund it would be with the ISC. We need to know, as an entity, if we can get funding for 100 percent design through a JPA funding request. We don't want the design authority without this funding."

Riley agreed with Domenici's statement that the section J funding was not available with the ROD.

"We have to determine funding, because we want design authority," Domenici said.

"If Reclamation maintains the design authority, it will still charge the CAP Entity through the JPA process," Sera said.

Domenici said the K funding, which is only available with indexing, is for construction after the ROD. "The J funding has $34 million set aside for construction."

Riley said the third piece of potential funding, the K funding, is unlikely.

"We need to bridge the issue," Domenici said. "Reclamation will be charging for the review on the 30 percent design. I'm not sure if there's a savings if we take control or inversely there may be duplication of costs. Don't take responsibility for design without a funding commitment from the ISC. Could we take responsibility for a portion of the design?"

Shannon asked for confirmation if the CAP Entity takes responsibility for the design and needs Reclamation assistance, the entity9 would pay Reclamation.

Riley confirmed that it would. "There is also a question whether the J fund will have any funding available. There could be an issue with the $34 million."

Domenici summed up the issue by saying the CAP Entity has the ability to trigger the responsibility for design. "Is the ISC willing to work with us so we would have funding and how to work with the ISC for funding."

Abeyta-Martinez said the ISC cannot guarantee that funding is available. "We can provide information and I think we can work together. The only thing the ISC can give you is what is available. We have to draft deliverables and may have to piecemeal some of the costs."

Domenici asked what the benefits would be to trigger the authority for design from Reclamation to the CAP Entity.

Sera noted that the entity is four years away from the record of decision. "I think let the process proceed through the 30 percent and NEPA."

Riley pointed out that sometimes Reclamation contracts out engineering, too.

Abeyta-Martinez asked if the entity does not request the design authority and Reclamation continues to have that authority, "does the 30 percent matter or is it not considered the design?"

"We haven't gone anywhere except this contract," Riley said. "The 30 percent is required for NEPA. Reclamation could do certain pieces. The primary goal is to get NEPA going."

Gutierrez said because the ISC already has the RFP for 30 percent design out, "and we have the potential for an MOU, I think statute would allow us to take over a portion of the design."

Sera asked Gutierrez what his opinion was on asking for control of the 30 percent design.

"I want to get away from paying for a contractor and Reclamation for the 30 percent design," Gutierrez said. "I want to get away from expending funds two-fold."

Abeyta-Martinez agreed. "Jeff, what if the CAP Entity requests full design control and doesn't have the funding. What happens? Do we have to pay Reclamation? The design has to comply with your standards. We have to pay you, Reclamation and the Forest Service for NEPA?"

"If it is a combination of engineering between the contractor and Reclamation, the goal would be not to duplicate," Riley answered.

"I like Ms. Martinez's comments a lot," Domenici said. "The ISC controls the NM Unit Fund, whether we have control of the design, partial or otherwise. It comes down to the New Mexico Unit Fund and how to best use it to get the design accomplished. It will be enhanced by using Reclamation knowledge."

Before adjournment, the decision was made to hold the next meeting at 9 a.m. Tuesday, Dec. 15, at the Grant County Administration Center Commissioners Chambers.