By Mary Alice Murphy

The New Mexico Central Arizona Project Entity met on Nov. 1, 2016 at the Grant County Administration Center.

Potential website discussion

NM CAP Entity Executive Director Anthony Gutierrez said he had sent to the members the quote from Rose Hessmiller, who helped design the ISC;s nmawsa.org website.

"I want the site to be interactive and to be able to integrate our information into it," Gutierrez said. "Rose has given us some examples and how we can put GIS and data to drive the process forward. To perform the tasks, she is requesting $15,500."

He said although he had requested comments from the entity members, he had received none.

Chairwoman Darr Shannon asked if the majority of the cost would be one time and then a maintenance cost.

Gutierrez said it would mostly be a one-time cost and then she would provide training for someone to maintain the site. "The costs will be reduced if the ISC lets us use their connection."

Vance Lee, representing Hidalgo County, asked for Gutierrez's recommendation.

"It's more than I wanted to spend," Gutierrez said. "But I want an interactive site instead of a plain old informational website. I think it would be beneficial to the board and the public, so I recommend it. I hope we can get it on the ISC next meeting. The money is already budgeted for professional services."

Allen Campbell, representing the Gila Hot Springs Ditch Association, said he didn't know anything about building a website, but "the purpose at this point is to get information out to the public. Who will put out the information? We will need someone producing this information. We need a good reporter or writer who will do this."

"To this point, we have been reliant on the media to get the word out," Gutierrez said. "Sometimes, it's the opinion of this board and sometimes, it's the opinion of the writer. Whether it's the opinions of each member or whether we put together a program, I presume the responsibility will fall on my shoulders."

He said he gets at least five calls a week from people wanting to know more about what is going on. "I try not to get my opinions involved. It's evident today that people aren't informed. One of the children that came to the meeting last month came up to me and said he didn't understand why we want to destroy the river."

Campbell said he understands that the website is a vehicle to get information out. "I also believe we need fiscal restraint."

Gutierrez said he talked to this vendor because of the ISC nmawsa.org website. He said he was told the entity needed a website. "Rose told me we could hire someone locally a student or someone else and she would train them to maintain it."

"I think that would be good practice," Campbell said. "But we have made public this person's cost, so it's going to be very difficult to approve another person to give us a more reasonable bid."

Gabriel Ramos, representing Grant County, said because it is more than $5,000, "I think we should go out to bid and award to the lowest bidder. I think this bid is too expensive. I think the public has to right to valid information. We need to RFP it and get the best price."

Shannon noted that if the entity didn't use the ISC host and server, it might be more expensive.

"It will potentially cost more for a domain, host and server," Gutierrez agreed. "We will have to provide specs for a bid. And not necessarily for bids, but for quotes. I suspect we would get bids with different services."

Esker Mayberry, representing the Fort West Ditch Association, said: "We as a board don't know what vehicle we want. We as a board need to decide what we want."

Aaron Sera, representing the city of Deming, said the city got several bids with different services for its website. "We need to get several people to present quotes, and we may need advertising."

Shannon said the group should get quotes and then sort out what it needs.

"We need them to present to us on a screen with what they can provide," Sera said.

Lee agreed with Sera. "We need to see something more. I am fully in concurrence to use someone like a student."

Campbell said Gutierrez had made a good start. "He is educating himself. Let him run with the information we've given him."

"This quote has to do with the board and with Ms. Hessmiller herself," Gutierrez said. "I have to have input from the board to know exactly what they want. If they have things they want to see, I need to know it."

Javier Diaz, representing Luna County, said he would like to continue the conversation and ask Gutierrez to come up with a scope of work. "I, for one, did not respond to his request for input. I'm asking for a scope of work from the members and have Gutierrez develop it."

Sera disagreed, and said: "My recommendation is to have someone present to us with different options."

Shannon said she was hearing the members say that they request Gutierrez to find three or more entities to present to the board what they can provide, whether it is through the ISC website or not.

Howard Hutchinson, representing the San Francisco Soil and Water Conservation District, said the site definitely needs to be searchable with ease. He pointed out the listing of bullets in page 2 of the proposal, presented by Hessmiller. "I think this is a good list of things to go off of. It's what I would present to potential bidders."

Mayberry suggested the public also give input to Gutierrez on what they want to see in a website.

"I think this has been a good discussion," Ramos said. "I think we should form a subcommittee with someone from the public."

"I'm also concerned about Mr. (Norman) Gaume's comment about trying to find things on the nmawsa.org website," Hutchinson said. "Are we proposing to migrate all the documents?"

Gutierrez said that although there may be the potential to use the same host and server, the CAP Entity site would be totally separate.

"I went to the Central Arizona Project website to see what they have," Gutierrez said. "It interacts with the public and with other water entities, but it is not project oriented as ours would be."

"In this process, we need to decide who will drive this vehicle," Mayberry said. "Who puts the content on and who decides what's approved?"

A motion to have presentations from several entities was approved.

Upcoming Audit

An update on last month's discussion on auditors for the CAP Entity and the notice that the New Mexico Auditors would be the auditor for the first full year, stated that the auditors would be at the city of Deming on Nov. 7 for a full first year audit.

"We are excited to clean up some misconceptions," Shannon said.

Funding Agreement

Gutierrez said the funding agreement between the ISC and the Bureau of Reclamation and including the NM CAP Entity has been months in the works. He asked how the board wanted to move forward.

Mayberry requested Gutierrez point out what's important.

"The purpose of this funding agreement is to advance funding to Reclamation for the environmental process," Gutierrez said. "It describes the New Mexico Unit, the New Mexico CAP Entity, the New Mexico Unit Fund, designates Reclamation as the lead agency and the ISC as joint lead, and mentions the memorandum of understanding between the two."

A list of definitions follows the purpose. The term of the agreement is that it "shall become effective upon the date of the last signature of this document and shall remain in effect until completion of all work identified in this agreement directly associated with a Record of Decision for the Unit, including close-out." It may be terminated earlier pursuant to the termination provisions.

It lists the roles and responsibilities of the parties, including approvals by the NM CAP Entity for various processes.

A calendar sets out deadlines for items to be completed by the parties to the MOU, as well as the responsibilities for the NM CAP Entity, which includes considering, in public meetings, any project plan submitted by Reclamation, within 30 days of receipt.

Funding advances by the ISC from the NM Unit Fund to Reclamation will follow a specific quarterly calendar. Gutierrez explained that some expenses might be changed if the plan changes, and any money not used in a quarter will be carried over to the following quarter and used first.

The agreement may be modified by a written amendment signed by the parties.

All information and data obtained or developed by Reclamation, in connection with the work funded out of the Unit Fund, "shall be available at any time, except where prohibited by law, to the ISC and the NM CAP Entity, with Reclamation listed as the source."

"We provided Reclamation with our proposed action," Gutierrez said. "Reclamation put together a plan with the assumptions needed for the environmental impact statement (EIS)."

He noted that, not in this funding agreement, but in the MOU, are items that identify interaction among the entities.

In the funding agreement, under liability, it states the NM CAP Entity has waived its sovereign immunity as set forth in its JPA. The individual entities that are parties to the JPA are not individually parties to this agreement.

Section IX E. "Nothing in this agreement shall be construed as creating financial obligations or financial liability on the part of JPA members for the actions or decisions of the NM CAP Entity made pursuant to, or in relation to, this agreement.

[Editor's Note: This section shows that the individual entities, such as the counties or water associations, cannot be obligated to put money toward this project. Taxpayers would not be on the hook for any additional funding, because the NM CAP Entity has no taxing authority.]

Section IX F. "Nothing in this agreement shall be construed as creating any tort or legal liability or a duty to indemnify, on the part of the JPA members for the actions or decisions of the NM CAP Entity made pursuant to this agreement."

Shannon asked if the MOU has to be finalized before the funding agreement.

Gutierrez said both would be done concurrently at the next ISC meeting.

Shannon asked when the MOU between the CAP Entity and the ISC would be completed.

Gutierrez said it's the next step to develop after the funding agreement and the MOU between ISC and Reclamation are approved.

Sera asked if the CAP Entity would have the opportunity to approve any supplemental changes that might be made.

Dominique Work, ISC attorney, who was on the phone, said: "Yes, absolutely."

Sera said he saw overlap between the funding agreement and the MOU.

Gutierrez said the funding agreement provides for Reclamation to be paid in advance for its work. The MOU between the ISC and Reclamation talks mainly about how the entities work together.

Work said the funding agreement is not just for funds for Reclamation, but also for contractors.

The funding agreement was approved, with naming Gutierrez as the person to represent the CAP Entity.

Gutierrez said he was only one of many who worked on the agreement. He named Mary Reece of Reclamation, other Reclamation personnel, the CAP Entity's counsel and others who have had input into it.

Approval of the Reclamation Interim Project Plan, Jan. 1, 2017-Sept. 30, 2017

Gutierrez said the project plan goes hand in hand with the funding agreement.

"I appreciate Gaume's talking about the prior estimates for the environmental process being in the $20 million range," Gutierrez said. "We were pleasantly surprised by the contractor cost. The proposed action has been simplified, thus reducing the overall project costs."

The project plan total expenditure was given as $4,413,000, including the NEPA evaluation at $3,663,000; the cultural resources compliance at $159,000; the engineering evaluation at $95,000; the principles, requirements and guidelines at $95,000; with a contingency of $401,000, which will be spent only if the technical representatives of the parties reach consensus prior to expenditure of any contingency funds.

The plan lists the activities to be completed in each quarter through the first quarter of state fiscal year 2018 (June-September 2017).

Gutierrez said the plan is based on the assumptions that "we get into the activity to be performed. This is the preliminary description of the work."

"I'm new to the NEPA process, but I'm learning and I have to have trust in Reclamation," Gutierrez said. "Talk about buy-in. In the past 10 years, Reclamation has provided plenty of information and staff time. I was able to be in conversation with Reclamation on what needs to be done. I offer my recommendation to approve this plan."

Hutchinson asked about workgroup meetings and about the interdisciplinary team.

Work said it was defined in the MOU between ISC and Reclamation.

Hutchinson asked who selects the membership of the technical work group.

Gutierrez said the EIS Project Management Team would be the selection group for all work groups.

Hutchinson said in accordance with NEPA, lead agencies have the responsibility to name other agencies that participate. "The invitation letters need to be sent quickly."

Gutierrez said three documents are before the ISC at the next meeting. "That is the mechanism that will start that process."

Work said Reclamation could not start work until the funding is approved and advanced to the agency. "We think that will be late December or early January."

Shannon said the NEPA contractor had to be hired. "How do we know how much they will be paid?"

Gutierrez said it was an estimate.

Work explained more about the MOU between ISC and Reclamation. "It lays out the framework of how they will work together. The purpose is to receive the record of decision. The most important is the EIS management team, who will handle the day-to-day work. The MOU has a long recitation of what the team will do. An executive committee of one ISC representative and one Reclamation representative will provide oversight over the management team and the other work groups."

"The MOU does not address funding, which is why it is separate and sets the framework for the technical work," Work said. "Next will be the MOU among the coordinating agencies. The joint leads will make decisions by consensus."

To a request from Shannon, Work said she would be "happy to forward the MOU to the CAP Entity attorneys, who will forward it to the members."

CAP Entity Attorney Pete Domenici Jr. said: "For the purposes of the board, a lot of things within these documents are not yet approved. Another thing hanging out is the AECOM contract refinement that will work for AECOM. It is critical to catch up or keep up with the documents going on now."

"I know the ISC is working on that modification to get AECOM to do the work," Domenici said. "It is important to this process so the EIS and project information don't have different timelines. I'm assuming the amendment will be issued soon. Our MOU needs to represent how we present to the ISC and Reclamation. This is an effort to be together with what AECOM has put together and the NEPA contractor."

Gutierrez said the amendment with AECOM was approved by the Department of Finance and Administration, "so we're on track."

Kim Abeyta-Martinez, the ISC non-voting representative on the CAP Entity, said the DFA has approved the amendment, "but not yet the budget."

The project plan was approved.

Executive Director report

Gutierrez said although most of his time has been spent working on these documents, he did attend an infrastructure conference in Ruidoso.

"We are continually being scrutinized because of our intent to secure additional water," Gutierrez said. "It is always at the forefront and taking away from conservation and other projects."

He said one of the speakers at the conference talked about the Silver City energy and water savings performance contract.

"If the town can prove the savings, it can bond at no cost against them," Gutierrez said. "You can measure the savings."

He also said conservation projects can be funded without AWSA funding by a variety of means.

He said the Grant County Water Commission project to provide water for Hurley has presented to FundIt, which is a group of different agencies that come together to fund items. Because of this process, the Hurley project, which needed $12 million, has been whittled down to needing $3 million. He said he understands that a lot of projects can use this funding source.

"We want to secure this water that is going to Arizona right now," Gutierrez said. "Conservation projects can be funded by the savings they provide. AWSA did fund some conservation projects.

"I had a meeting with Sen. (Tom) Udall," Gutierrez continued. "He was interested in how the project has been evolving. We have been able to show how benefitting the agricultural community with aquifer storage recharge will benefit the habitat. Agricultural production in southwest New Mexico is third to delivery of food products as second. First is mining. We see opposition to what provides our economic base. Udall was interested to hear about the possible economic benefits."

One of the New Mexico Finance Infrastructure Conference presentations was on aquifer recharge. "It was good to see there is benefit to what we're trying to do."

"I have contacted engineers and a hydrologist to move forward with quotes for consulting for us," Gutierrez said.

Lee asked if any were local.

Gutierrez said Occam Engineers Inc. is interested and may be working on the Gila Basin Irrigation Commission project, too.

"Souder, Miller was interested, as was one from Denver," Gutierrez said.

He said he would be having a meeting with the ISC on potential changes to the CAP Entity's JPA. "We are also having continued discussion with Freeport-McMoRan for assistance in the regional project. It's all about water security. The JPA holds us to only the New Mexico Unit, but changes could potentially free us up to other endeavors. I don't know what it may entail."

Domenici said they are working with the ISC technical staff to perhaps get on the ISC early December meeting.

"As your representative, I would like to approach the ISC on selling bonds for larger projects," Gutierrez said. "I certainly feel it would be helpful if we have a large expenditure of $200 million to $300 million. I would like to try to build credit. This is not to tax anyone, but it will help us with expenses. If we have a favorable record of decision, it would build credit for possible construction. If the ISC can entertain the thought, we will be able to move forward."

Hutchinson said he would like to reinforce other sources of money. "The soil and water conservation districts met with the Forest Service and the National Resource Conservation Service to talk about what funding is available. Many of the projects we talk about, such as ditches, money is available for them in the Farm Bill. In that bill there is money for watershed restoration, erosion control, groundwater management, among others. There are 10s of millions of dollars available for New Mexico."

He said he wanted to correct an earlier statement that was allegedly made by him. "I said the Mimbre+