By Mary Alice Murphy

Members of the New Mexico Central Arizona Project Entity met Jan. 3, 2017 to choose officers, approve the Open Meetings Act resolution and address several agenda items, including consideration of a draft memorandum of understanding between joint lead agencies and the NM CAP Entity, an update of the New Mexico Interstate Stream Commission non-diversion projects and the presentation of the fiscal year 2016 expenditures from the New Mexico Unit fund.

The first item of business was the election of officers. It was moved to retain Darr Shannon, who represents the Hidalgo Soil and Water Conservation District, as chairwoman; Vance Lee, representing Hidalgo County, was named vice chairman and Van "Bucky" Allred, representing Catron County, was named secretary.

The Open Meetings Act elicited almost an hour's worth of discussion on particular wording for several sections. The first item brought up by Shannon was to change order of many of the nine points for flow of information.

No. 1 remained as written to hold the meetings at the Grant County Administration Center Commissioners' Meeting Room, unless otherwise indicated in the meeting notice.

No. 2 said all meetings of the NM CAP Entity shall be conducted using Robert's Rules of Order as parliamentary governance. After discussion on whether to use shall or may, with pros and cons given, it was decided to cut that point, but to endeavor to use correct parliamentary procedure without having to stay within the confines of Robert's Rules of Order.

No. 3 was changed from the prior No. 6 to set forth parameters and requirements for special meetings, but was changed from the original language to clarify who would call the meeting and a notice of five days should be given and where the agenda could be picked up.

No. 4 was the prior No. 7 and stipulated that notices should include a provision that stated individuals with disabilities would be offered aid or service reasonably required for that individual to attend or participate in the meeting by contacting the secretary or chairwoman of the Entity.

No. 5, the former No. 8, set forth the requirements for notice of an emergency meeting, with a requirement to report within 10 days to the New Mexico Attorney General's Office the action taken and the circumstances creating the emergency.

One of the most discussed items was public comment.

Allyson Siwik, representing the Gila Conservation Coalition, during the discussion of public comment, said she was "shocked that the entity would consider a roll back of public comment. I hope that you would not weaken your open meetings act resolution by not allowing public comment."

Entity member Howard Hutchinson, representing the San Francisco Soil and Water Conservation District, noted that public comment would continue to be on the agenda. CAP Entity Executive Director Anthony Gutierrez said a change in language might limit disruptive or non-productive comments, which should not be allowed.

Lee said the chairman would still have the right to cut someone off if comments were destructive or not helpful.

No. 6, the prior No. 3, was returned to its original language on public comment, which will be limited to three minutes. Discussion on whether it should be set at four minutes reached a consensus that anybody wanting more than three minutes could request to be put on the agenda.

No. 7, the prior No. 4, addressed the request for being placed on the agenda. The secretary or chairman must be notified of the request at least six days prior to the next regular meeting of the NM CAP Entity.

No. 8 was added to the list and stated (after discussion and amendments): Participation by telephone will be allowed for NM CAP Entity members, ISC staff, Bureau of Reclamation staff, federal or state officials and contractors.

No. 9 addresses the closure of a meeting if the subject matter of such discussion or action is exempt from the open meeting requirement under Section 10-15-1(H) of the Open Meetings Act. Four stipulations were set forth under this point. Any action taken must be done in open meeting.

During the lengthy discussion, Norman Gaume, retired engineer and former ISC director, made several points. "There is no opportunity for citizens to participate on the phone nor contractors."

Contractors were added to the list in No. 8, but not citizens because of the limitations on the number of participants allowed on the line at one time.

He also noted that the agenda had been changed at the December meeting without notification. Shannon said it was her fault, because she printed the wrong draft for distribution to participants.

Gaume also said that any committees should be noticed as public meetings, whether there was a quorum or not.

The members approved the OMA resolution as amended.

Hutchinson asked for a few corrections to the minutes, which were approved as amended.

During public comment, Gaume noted that in order for the Entity to "develop water," it would be necessary to know how much water was available. He said the ISC posted an Excel spreadsheet on the nmawsa.org website and simulated daily amounts of water available to go into storage. Gaume said the reservoirs were presumably lined and listed amounts of release, taking into account evaporation.

He took the model simulation by the ISC and along with "two retired experts, Jim Brainerd, geologist" and another expert in coding, retired from Intel, and reviewed the simulation. "We corrected some programming and logic errors. I will present the model at the February meeting and give you a copy of the model. The chairman has agreed to let me be on the agenda."

The simulation was of two reservoirs, one of which would hold 800 acre-feet and the other 3,500 acre-feet.

"The simulations are designed to give the maximum level of water," Gaume said. "I will go over the graphics and charts at the next meeting and will give you the model along with descriptions of the errors we found and corrections we made. And I would be happy after the meeting to have a workshop to show you how to use the model.

"For now, I'll just say the 800 acre-foot reservoir could supply 7 cfs (cubic feet per second) for May and June with a 50 percent shortage," he continued.

Pete Domenici Jr., NM CAP Entity attorney, asked how the model relates to the work being done by consultants AECOM. "Are they using the model or making their own model?"

"That is an excellent question," Gaume said. "I don't know. Modeling is not part of AECOM's scope of work. Mr. Ed Toms said AECOM would have to get into modeling. The ISC, for whatever reason, has avoided quantifying the yield."

Siwik encouraged the members to "follow through on the letter and spirit of the Open Meetings Act in discussing its business in open meeting."

"As you know the Gila Conservation Coalition and its partners continue to ask for records through IPRA to the New Mexico Cap Entity, the city of Deming and the Interstate Stream Commission," she continued. "Unfortunately, because the New Mexico CAP Entity is not fully discussing its business in open meeting, as required by the Open Meeting Act, we are required to go through IPRA to get information on more of the work going on behind the scenes. This is an inefficient and time-consuming process for all involved, and still leaves us in the dark on work going on."

She said she and others want the city manager of Deming (who is the fiscal agent for the CAP Entity) to provide invoices. Invoices show payments of $200,000 between two law firms, she said. "What is this work? I don't think it has been discussed in an open public meeting to my knowledge. How much money has been spent on this task? Is the full membership aware of that work? You have a fiduciary responsibility over how your budget is being expended. I continue to be disappointed that the pleas for transparency continue to go unheeded."

Claudia Duerinck of Gila said she would ask some question and leave with some questions. "In the JPA there are matter-of-fact statements that, without limitation, you will receive funds from the New Mexico Unit Fund, bonds, members' fees and end user fees. But who in the Gila Valley is most able pay? Will ordinary citizens who receive no benefit be willing to pay taxes to benefit a few?"

"We have heard that end users will pay to their ability and into perpetuity," Duerinck continued. "But if the end user is part of the entity, payment will only be at their discretion and within their ability. How does the CAP Entity plan to overcome the financial hurdles of a poor economy and a tapped-out homeowner? Agriculture is not going to carry the economy of any one of the four counties.

"You have enough money to build a diversion and possibly to recharge a small amount into the aquifer," she said. "What will you do when the voting public says no to paying in perpetuity? The question is do you gamble and hope or do you move forward with a sure thing, using AWASA(sic) money? This funding can improve the watershed and fund municipal water systems, promote conservation and pay for upgrading irrigation systems."

A Deming resident, Jane Fricano, said she has attended a few meetings on the diversion project. As a lay person, I would like to speak about what I hear and see in Deming. I attended the public hearing in Deming and the commission room was packed. Not one person talked in favor of this project. It was apparent to most people that the decision had been made to say yes. We were not allowed to vote on what we feel it will do to our community."

She complimented Deming on its steps for municipal water conservation.

Fricano said she understood that the CAP Entity members have the right to look at the bylaws and amend them and the JPA.

"Consider what the law of Congress allows you to do on this project," Fricano said. "Hopefully you will have more transparency so that we, as citizens, learn how do we pay for this in the future. We do not see the benefits that we will receive overriding what we will have to pay. Tell us what we will get, what benefits we will get and what our benefits will be in the future."

Ron Troy of the Hondo Valley said: "I am still concerned about the small water users downstream. I read an editorial in a local paper saying that there will be no dam and reservoir being proposed as part of this. Mr. Hutchinson at the last meeting said this project was different from the Hondo Basin because there is a reservoir for providing water to those water users. I disagree with the logic. I'm confused about what you're doing. How many phases are you contemplating other than the two in progress right now?"

He also mentioned the Northwest and the U.S. Army Corps of Engineers and the Bureau of Reclamation ongoing mitigation on mistakes that were made in the past. He asked Reclamation's Jeff Riley to comment on those costs.

Under old business, Gutierrez updated the Entity members with less than good news.

"We will not be able to utilize the AWSA website to build our website off of," Gutierrez said. "The state has concerns about liability."

He said the group could go out for a request for proposal (RFP) or he could seek quotes, and if the quotes were under a certain amount, the group would choose which quote to use. "We have the money in the professional services budget."

In an amended motion, Gutierrez was asked to prepare an RFP to bring to the next meeting, along with quotes.

Gutierrez asked for members' comments on what they wanted to see in the proposal.

In new business, a draft MOU between the joint lead agencies and the Entity for the New Mexico Unit of the Central Arizona Project Environmental Impact Statement had been distributed to members of the CAP Entity prior to the meeting. Copies were also available for the public. It was approved by the membership.

"The purpose of the MOU is to describe the roles, interactions, responsibilities, and authorities between the join lead agencies and the entity in preparing the environmental impact statement (EIS), and completing other related environmental compliance requirements for design, construction, operation and maintenance of the proposed NM Unit of the CAP. The NM Unit of the CAP is referred to herein as the 'Project.' The joint lead agencies will prepare the EIS in accordance with NEPA and address both the effects of the proposed NM Unit and alternatives to provide additional water from the Gila River, its tributaries and underground water sources, including the San Francisco River, to the Southwest Water Planning Region of New Mexico (which comprises Catron, Grant, Luna and Hidalgo counties)."

The goal of the MOU was to include the NM CAP Entity in all procedures and processes leading toward the EIS.

The next item of business addressed allowing Gutierrez to meet with ISC staff to discuss revisions to the CAP Entity joint-powers agreement. The topic has been brought up and discussed in past meetings, with members saying they wanted non-diversion options to be part of what they accomplish.

Gutierrez said that allocations of funding for attorneys had been put toward legal analyses. "If we are not able to use the total amount of water in New Mexico, we should be able to benefit from it being used in Arizona. I have brought up this issue several times. I also continue to talk to Freeport-McMoRan, although we have no verbal or contractual agreement."

He has talked to Freeport-McMoran about the possibility of using some of its existing infrastructure to move water.

"I want to amend the JPA to visit a need or want by some members to fund some things other than the New Mexico Unit," Gutierrez continued. "I don't want to reopen the door on actions the ISC has already taken."

Domenici said the effort follows on the discussion held when the Gila-San Francisco Water Commission was dissolved and the CAP Entity said it would be prepared to take on the responsibilities of the commission. "A responsibility was to discuss and advise the ISC."

A motion was made and approved for Gutierrez to continue the discussion with the ISC on updating the JPA.

Gutierrez noted that some of the members of the Entity are recipients of ISC awards. "Some projects have not been able to move forward because of financial constraints of the JPA."

Kim Abeyta-Martinez, non-voting member of the Entity representing the ISC, gave an update summary of the ISC approved non-diversion projects.

The list includes the Town of Hurley Regional Water Project (formerly the Grant County Water Commission Regional Water Project). At the December 2016 meeting of the ISC, the ISC members approved the plan presented, which included transferring the ownership of the facilities and allocation of all grant funds to the town of Hurley. The town has three years to secure the funds to complete the project.

The Gila Basin Irrigation Commission has requested a two-year extension on its Diversion Structure Project.

The 1892 Lund Ditch Association asked for a three-year extension, because of a delay in engineering possibly to the end of 2017.

The Pleasanton East-Side Ditch has received its executed funding agreement, so a notice to proceed will be issued soon upon Department of Finance and Administration approval.

The New Model Canal Improvement Project had been separated from the Sunset Canal Improvement Project. The two agreed to divide the $200,000 allocated to their joint project 65/35 percent. Sunset Canal determined it is economically unfeasible to pursue and complete its proposed project and asked the ISC to re-allocate its share to the New Model Ditch. New Model requested an extension to Dec. 31, 2019 to secure additional funding.

Catron County Ditches selected Occam Engineers Inc. for the Kiehne Mid-Frisco Ditch diversion structure project. The contract was awarded and the design is underway.

City of Deming Effluent Reuse Project for $1.75 million received its notice to proceed a year ago and Deming set to work to hire consultants and get the design work done. Smith Engineers discovered a technical problem and is working with Deming to develop a solution.

Municipal Water Conservation Fund projects include:
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