By Mary Alice Murphy

The New Mexico Central Arizona Project Entity addressed issues from audit requirements to hearing public comments to a revised scope of work for engineering to an OMA violation to regular business at its Tuesday, Aug. 2, 2016 meeting.

After the usual roll call of members present, several, who had called into the meeting, identified themselves. Two representatives from the New Mexico Auditor's Office'Emily Oster, Quality Control director, and her colleague Hamish Thompson'were on the call to answer questions about a necessary audit of the entity's revenues and expenditures. Dominique Work, Interstate Stream Commission attorney, Dara Parker from Sen. Martin Heinrich's office and Rob McGregor from Congressman Steve Pearce's office also called in.

Sara Boyett, Southwestern New Mexico Audubon Society president, during public comment, appealed to members to have a "lighting bolt of clear vision." She also requested that the group abandon its goal of storing water for a "tiny percent" and use the allocated funding for smaller projects, after starting a "fresh conversation with your respective constituencies."

Allyson Siwik, Gila Conservation Coalition executive director, said: "Good decisions can't be made when the New Mexico CAP Entity is not provided with adequate information." She had added the numbers for the chosen alternatives and counted them at $800 million. "It looks like you're back to square one with a billion-dollar boondoggle. From the public's perception, you have made no progress."

Richard Martin, resident, said: "I don't see anything that makes fiscal sense. It doesn't make sense for me to be taxed. Please present a customer, who is going to buy this water." He noted that funding seems to be flowing to people outside the four counties, including the ISC, the U.S. Bureau of Reclamation and engineers. "Make sure the money remaining is spent in the four counties explicitly listed."

A woman from Deming [whose name this reporter did not catch], but who identified herself as the Audubon community outreach coordinator, requested that meetings of the entity be held occasionally in Deming so that residents of the city might more easily be able to attend.

Norman Gaume, retired engineer and former ISC director, said he believed the CAP Entity has been misled by the ISC. "They have tried to suck you into their world, and you've been called on it by the attorney general." He alleged the ISC has a pattern and practice of skirting transparency. "They deliberately misled the CAP Entity by advising you to go into closed session." He said he thinks the entity does not understand the Consumptive Use and Forbearance Agreement or the Open Meetings Act. He noted that minutes have not been presented and approved at the subsequent meeting as required by the Open Meetings Act. "I suspect you talked about finances in closed session. ... Madame Chairman (Darr Shannon), you have been gracious, but (Grant County) Commissioner Gabriel Ramos said I was out of order, and Mr. (Anthony) Gutierrez (CAP Entity executive director) mocked the law. I think we all should tone down the rhetoric."

Ramos asked that Gutierrez explain why the entity approved the alternatives that it did. Shannon said she preferred to hear the rest of public comments, and Gutierrez would speak later on the agenda.

Lorna Ruebelmann, resident, said she wanted to thank people who have worked to get the point across about the project. "For members of the press, who have been here from the start, I thank them for keeping the public informed. I am dismayed at secret meetings."

Shannon told the entity members and the audience that the entity's budget is subject to the State Audit Act for the first and second fiscal agents. "I was told because the CAP Entity exists separately from the fiscal agents, we must inform them no later than Aug. 15 that we will start the auditing process."

Aaron Sera, Deming city manager, said he had a teleconference with the state auditor's office. "I'm not sure what we will audit. I'm not sure what they need from us."

Gutierrez said he, too, talked with the auditor's office. "They need the revenues and expenditures of the CAP Entity. We need to respond by Aug. 15 and give them the requested information. As far as I can tell, they need the financials from the city of Deming up to June 30."

Oster said regarding the Aug. 15 date, the entity can consider that date met. "What we need are the total revenues and expenditures and the number of transactions."

"We would be doing two audits on the same information," Sera protested. "The city of Deming is doing an audit as we speak. Does that one suffice?"

"As the second fiscal agent, the city has its own auditing requirements for the entity," Oster said. "Some will be in both audits, but the CAP Entity one has to be separate."

Shannon asked if the entity needed an MOU with the state auditor, to which Oster replied in the affirmative. Oster said she could work with the entity to create the agreement, and she said yes, there would be a cost, "but typically, we are below market."

Sera said he had no problem working with the auditor, but "it seems a separate level of effort to deal with the state audit will come at a cost." Oster said again the CAP Entity is separate and she emphasized that if no audit is provided annually, it will not meet the requirement of the state Audit Compliance Act.

Sera, Gutierrez, Shannon and Oster agreed further communication would be necessary.

The main topic of the meeting was to consider and approve the revised scope of work with AECOM engineering firm.

Ali Effati of the ISC said some additional tasks needed to be done that relate directly to the proposed action taken at the last meeting. "Some tasks have higher priority. We don't want to spend money on tasks that are not necessary."

The Draft Scope of Work Phase 2 (PreNEPA) said: "Tasks are not necessarily presented in order. No task will begin until direction for ISC staff is received."

The first task on the list was project management, with each task having description of sub-tasks and deliverables.

Task 2 was the ASR (aquifer storage recharge) ground water numerical model. Effati explained this task was directly related to one of the major actions. "AECOM presented the model, but we all feel that future modeling is needed to assure we are working from a feasible hydrological point of view."

Effati noted that the concept and locale are tailored to a new location in the vicinity of the Gila Gage site. "These tasks are directly related to what you discussed in the workshops."

Allen Campbell, representing the Gila Hot Springs Irrigation Association, said he saw nothing in the scope that looks at any gravity flow system.

Effati said part of Alternative 4 is gravity flow from the gage to Winn Canyon. Campbell protested that it is physically impossible to move water to a higher level with gravity flow. Even with a pipeline, water has to have enough drop to overcome the friction in the pipe. He also brought up a potential site at Mogollon Creek, which was not included by the members in their decision on what action to take.

Shannon asked if a conclusion had been reached on the different elevations reported by AECOM and Reclamation.

"Both Reclamation and AECOM agreed that gravity flow could work through a pipeline or open channel," Effati replied. "The only difference is in the level of storage. We will make sure we are looking at the same numbers."

Vance Lee, representing Hidalgo County, asked where in the scope gravity was mentioned.

"This scope relates to the questions that need to be answered, not to facts," Effati said. "Gravity flow was in the proposal."

Craig Roepke of the ISC supported Effati's reply by saying gravity flow was not addressed because it is feasible. "These (tasks) are to answer questions."

Gutierrez noted that Campbell had done a lot of work on the Mogollon site, and "we appreciate his efforts. The reason we didn't choose the Mogollon Creek site was that even if there were substantial amounts of water in Mogollon Creek, if the amounts were not substantial at the Gila Gage, they would not meet CUFA parameters."

CAP Entity Attorney Pete Domenici Jr. read from a proposed letter to be sent to Reclamation to start NEPA. It says: "The Entity will continue to refine and develop more information on the proposed action and will provide such information to the Bureau as it is developed."

Domenici also asked the ISC if budget and timelines would be put into the scope.

"Once we have the scope of work approved, we will start the cost negotiation phase, in coordination with your executive director," Effati said.

Howard Hutchinson, representing the San Francisco Soil and Water Conservation District, asked if there would be communication with the entity, before the ISC staff decides, to which Effati said: "Absolutely."

Hutchinson said Catron County is proposing several ASR sites in the San Francisco Valley. "Is there any way to correlate the sites in the Gila and in the San Francisco?"

Effati said that was an issue that needed to be discussed in relation to the proposed scope he was presenting. "We feel instead of an environmental impact statement on all 16 sites, we can do a quick study in this scope and further evaluate. We started with 30 canyons. We now have Winn and Spar. We can do the same in the San Francisco, after we get feedback on particular sites."

Hutchinson noted that projects already completed on the San Francisco have recharge components, but without piezometers, they cannot quantify the amount.

Task 3 is to perform field visits to additional sites down (the Gila) valley for ASR.

Task 4 would involve Pre-NEPA coordination with Reclamation

Task 5 is value engineering. Effati asked the members to look at the infrastructure and decide whether it is over-designed or if it would be possible to reduce the footprint. "The result will be provided at a summary workshop."

Task 6 addresses geology and geotechnical investigations for reservoir and ASR sites, with all the separate tasks needed for the Winn and Upper Spar reservoir sites and ASR at the Gila Gage site and additional sites down valley

Task 7 would provide independent yield models at Winn and Spar reservoir sites. Effati said it is assumed that the ratio will be 3:1 storage to yield. "We want to take a hard look at that ratio."

Task 8 would determine land ownership mapping from public information.

Task 9 is one of the important tasks, Effati said. "The AECOM team will prepare for and attend a meeting with The Nature Conservancy, the NM CAP Entity and the ISC as required." ASR sites are located on TNC property in the Gila Valley. Effati said the main site the entity has chosen for ASR is co-owned by The Nature Conservancy and the New Mexico Energy, Minerals and Natural Resources Department. "We need to communicate and make sure they are on board."

Lee asked if similar coordinating efforts would be held with private landowners. "Yes, at some point," Effati said.

Task 10 is diversions and diversion locations. Gutierrez said conversations with TNC, which wanted more information, had required this task to address the issue.

Effati said the main purpose of Task 10 is to "establish the diversion elevation and location for the Gila diversion. The diversion locations aid in evaluating the gravity, pump and locations for ASR. We think this is the highest priority to be done first and then Task 9."

Task 11 addresses agency requirements, such as roadless areas. "We want to make sure the engineer has knowledge of all requirements, regulations and all management considerations," Effati said. "Reclamation would like to be kept in the loop when we reach out to other federal agencies."

Task 12 would address additional work as directed.

Sera asked about deliverables, such as maps. Effati said the client becomes the owner of the maps or database and they can be transmitted to the CAP Entity. "In general, we get hard copies and electronic format."

Wendel Hann, representing the Gila Farm Ditch, said it was hard for him to visualize the big picture. "I'm trying to get a handle on the flexibility. I've worked with EISs and often the final report didn't look like the original proposal. How much of this is 11th hour or do we have time to refine before NEPA?"

"I think Mr. Hann is correct," Roepke said. "Often NEPA is used as a planning tool, although not on purpose. There will be numerous requests to modify, and if they meet the purpose and need, they must be studied in NEPA. What Ali is trying to do with this scope is look at issues with the proposed action to make sure there are no issues. We are going to have to be in meetings with TNC and NMEMNRD. In No. 10, we need details on those natural protected land areas. If the result of our talks is positive, only then will a numerical model be done. If it's negative, we may have to revise something. All of this scope of work is to clarify issues before we discover we can't use this piece of land. If we are two years in, then we're dead in the water.

"We would appreciate approval of the scope at this meeting," he continued. "We haven't finished all our discussions with the engineer. We would like permission to move expeditiously with your technical representative, Mr. Gutierrez."

"We have to put our trust in Anthony," Hann said.

Shannon suggested the entity could hold a special meeting, if needed.

"My feeling is we have an executive director employed to take care of the in-between decisions," Lee said. He moved to approve the draft scope of work.

Domenici asked if the group approved the scope, "when will the dollars be approved and will it come back to us before it is signed?"

"We will keep the entity informed on the modifications with Anthony," Roepke said. "When the dollars are decided, we will get that to the entity. The MOU requires the entity to approve the scope, but not necessarily the dollars."

Kim Abeyta-Martinez, representing the ISC as a non-voting member, said discussion has to take place on the dollars. "The cost will be part of the scope presented to the ISC on Aug. 18."

Domenici asked about the number of permit sections and whether the ASR would be approved by the Office of the State Engineer. Lloyd Valentine, OSE Deming District water master, said there would be a permit process whether for the ASR or another process. "If it's not protested, it can take up to six months, and longer if protested."

Lee asked to include the permitting in the motion.

Jeff Riley, Reclamation engineer, said he wanted to clarify a couple of things. "The confusion of elevations and gravity flow between Reclamation and AECOM. I emphasize that Reclamation is not promoting any proposal. We want to make sure the CAP Entity has all the information it needs."

"For the elevations, we are using the very same exact numbers as the ISC and AECOM," Riley explained. "We are not using different data. At the diversion point, the elevation is 4660 feet. The diversion structure is where we differ. We assumed a gated diversion. AECOM, I believe, is considering a Coanda Screen. That is a loss of a few feet, say three feet. We used an open channel conveyance all the way to Winn Canyon. AECOM is assuming a pipeline, which has larger friction, causing a loss of four feet. It's roughly seven feet by this time. When this issue came up, we optimized the diversion construction and got 3,000 acre-feet. The seven-foot difference is the top foot of the reservoir. Each foot is worth 100-200 acre-feet."

Hann asked what Riley's risk rating is for gravity flow. "If the engineer is right, we can do this," Riley replied. "The reservoir will be filled at the top. I could not recommend filling at the bottom."

Domenici asked if Reclamation had looked at the CUFA and Mogollon. "We can't divert from Mogollon, unless we can divert from the Gila Gage," Riley replied.

Campbell said there is about a four-month difference in spring flows since the Whitewater-Baldy Fire. He gave statistics and said the Mogollon is extremely volatile and has potential for high spring run-off. He said Mogollon mimics the Gila River flow with about 8 hours difference. "Mogollon Creek was impacted almost 100 percent by the fire. I do believe Mogollon is not a bad choice."

The scope of work was approved by the members.

Shannon explained the lateness of the June 21 meeting minutes. "The recording was awful. "I spent hours and listened to the same thing many times trying to create the minutes." She said her minutes for the July 1 and July 11 minutes did not violate any regulations. "On the June 21 meeting, if necessary, I will be happy to speak to the attorney general."

In new business, Shannon said she was focusing on the last page of the attorney general's letter of violation to the CAP Entity. She said included was the complaint from Gaume alleging the entity had violated the Open Meeting Act.

"We sent a response to the complaint and on July 12, we received this letter from the attorney general advising the CAP Entity to address the violations," Shannon said. "I created a draft letter of action taken. We are going to correct the violations, but we are not going to agree with them. However, we will not contest them."

Gutierrez gave a summary of the substance of the alleged violations. "In January, I was not the director. The substance of the meeting had to do with the draft scope of work. Under the advisory of counsel of the ISC, if held in open meeting, the discussion of the contract would be in violation of the procurement statute. The draft was vague. In the second closed session, we were required to sign disclosures of confidentiality. we were not able to see the substance of the documents prior to the closed session. No decisions were made, but we moved to approve the scope in open meeting. In the March meeting, we reviewed the scope under strict confidentiality. The scope is now on the nmawsa website."

Sera said he wanted to mention that the entity members were advised "by our own legal counsel and the ISC counsel. We're not lawyers, but took that advice."

"We had to sign the confidentiality documents and had to give everything back," Shannon said.

Gutierrez refuted Gaume's comment that he had mocked the law. "I was not mocking any statutory requirement. I said procurement was as important as the Open Meetings Act and we have to follow both."

Domenici said neither of the scopes that were given to them and then taken back had dollars or timelines on them. Gutierrez said they were negotiated after the board's approval.

"This is a personal comment," Lee said. "I felt like we were behind the 8-ball to get the scope done so we could get an engineer on board and to get further toward NEPA. I felt we were caught between procurement and the OMA."

Siwik said none of the public has seen the documents from the closed sessions. "I hope you will make them public."

"On January 14, we had two documents," Domenici said. "We can give you those. The March meeting document was taken back, but it is what is now on the nwawsa.org website."

"The motion was to approve the technical committee's report," Siwik said. "In the public session, the technical committee did not report anything. The public would be interested in seeing that report."

Gutierrez said there was no technical committee report. "The scope of work was part of the conversation in open session on what a potential project could look like. That ended up in the scope."

Domenici noted the scope had seven components and there was limited discussion. For most members, it was the first time to see it and they had to hand it back.

Campbell said he was on the technical committee, which never made any decisions. "I made for myself a draft list of alternative projects that had been discussed loosely by the technical committee, but they never anointed, endorsed or agreed to anything that we could bring forward to the group."

Gaume said the ISC has been hiding information from the entity for 10 years. "It spent $7 million, but it doesn't know what to do. The Technical Committee struggled with decisions. But let me tell you about decisions you made. You decided not to develop a dam for $1 billion in the Upper Gila Box. You undoubtedly talked about that. People talked about that. We are deprived from knowing what was said. You decided a number of things. You decided you want to build an alternative energy component. Somebody discussed this. Who was it? What was the discussion around this? We still are deprived of hearing about your discussions, your decisions. I'm extremely disappointed."

"I wasn't going to say anything until Mr. Gaume went into his little diatribe there. I will try to avoid any profane language," Hutchinson said. "The billion dollar project was invented out of the imaginations of the opponents to any project. I admit, it has been good strategy for fundraising and effective at poisoning the well of the public's mind, but it never existed. Mr Gaume alleges we had secret discussions to shelve it, but we didn't because it never existed in our minds. I hear Mr. Gaume about not making disparaging remarks but he and his ilk constantly make disparaging remarks about representatives on this board that are elected representatives of their constituents. If you believe that your position is what the constituencies of your communities want, get your names on the ballot. We are listening to your comments, but we also have conversations with our constituents on the streets, in the grocery stores, and in the caf+