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Published: 10 February 2017 10 February 2017

By Mary Alice Murphy

The New Mexico Central Arizona Project Entity heard several people give public input at its Thursday, February 9, 2017, monthly meeting. Also on the agenda was retired professional engineer and former Interstate Stream Commission director Norm Gaume a presentation on a model developed by him and other engineers.

Because two presenters of proposals for a website were on the phone and had time constraints, the agenda item was pushed toward the front of the agenda.

NM CAP Entity executive director Anthony Gutierrez introduced this article author, who gave the first presentation, representing her umbrella LLC business, which includes the Grant County Beat.

She addressed each item in the website scope of work and how she and her webmaster could provide all the services requested. She laid out the initial set-up costs at just under $1,300, using the content management system Joomla, with many of the services required built into the system. If she and a helper did posting, with a retainer for the webmaster to address future problems or needs, plus recurring costs for domain names, and costs of other needed plug-ins would equal about $2,250 annually.

Howard Hutchinson, representing the San Francisco Soil and Water Conservation District, asked if the maintenance costs would be one-time or recurring. This author explained that the initial set up costs would cover most of the first year, except for maintenance costs and the semi-annual renewals. After the first year they would be recurring.

Allen Campbell, representing the Gila Hot Springs Irrigation Association, said he had just had help in developing a new website and this quote was quite reasonable for the initial set up. He also noted that the website would require a lot of maintenance with posting many reports as they became available. "With earlier proposals, there would be a lot of initial cost, but not enough for maintaining the site."

Gutierrez introduced the next presenter and said he had the proposal on the screen.

Joseph Badash of Ferguson Lynch, an internet technology consulting agency, said the domain name is one of the first items and is registered in the name of the entity, so it's theirs. "We build sites that you run. I heard concerns about maintaining the site; we train the clients to run them. It's easy. It's just a matter of adding something using your computer. News from other water organizations that we have created would move dynamically onto the site. We use a content management system called Plone. As you add things, they can remain private until you want to make them public."

He said expanding the site would not cost extra. "Everything we offer is built into the site, including the calendar, so you would not have to pay anything for add-ons. We offer member databases for the members with contact information. It's your choice to make it public or private. We have a huge suite of services, most built in house. We have 20 years of experience."

Gutierrez explained to the members that he had not received the proposal until Wednesday and would get it to the members. "In all fairness, it is a 30-page document, so I want to give people time to review it." He said he has documentation that he talked to several providers, but only the two replied.

"We may have to receive a third proposal to meet procurement requirements," Gutierrez said. " I talked to two other people who expressed interest but because did not meet the deadline. I think it's important to have someone to assist us if we have some issues."

Badash said he could be contacted by email, phone or Skype at any time.

Jim Massengill, representing the city of Deming, said there was a lot of information to review. He had several questions.

Badash said Rose Hessmiller estimated it would cost about $2,000 to build up server space and $7,500 for completing the site, but there is no annual fee after that. "After it's built, it's you running the site. If you have a technical problem, call us." He said Hessmiller might charge a retainer, but the Water Dialogue doesn't pay a retainer because it is served by all the sites together.

Shannon asked what the initial cost would be. Badash said $9,500 including labor.

Massengill said at first comparison it's not apples to apples, but apple to orange. "One that's maintaining and one that's not. One that does a lot of the work, which is a distinct difference."

Gutierrez said it depends on what time of year. Right now he's in Santa Fe a lot. He believes it is possible "for us to maintain the site. I think the idea would be to build it, and I could probably maintain it at least once a week."

Shannon said a couple of people could keep up the site.

"You can already see there are so many ways to do a site," Gutierrez said. "We need to determine what we need.

"We may continue to get one more proposals," he continued.

Campbell said he saw a problem as a contractor. "It's a problem for someone else to come in after two bidders have already given their costs. Maybe we should have another shot at it. Right now, we have an apple and an orange."

Shannon said the proposers had 30 days to meet a deadline.

Gutierrez said it wasn't 30 days, because he talked to Deming and got input from the members, and then he sent out the scope by email and talked to people on the phone.

Lee asked if Gutierrez had put a deadline on the proposals for Tuesday, to which Gutierrez said he had. "I'm like Mr. Campbell, it's not fair for a third to come in after the first two met deadline," Lee said.

Gutierrez has documentation that he sent it out to more than two. "I would like to determine if it meets procurement."

Ramos said he agrees on the two meeting deadline. "Could we call the procurement officer in Deming?"

Massengill said almost everyone from Deming was in Santa Fe. He asked that Deming be given enough time to review the issue, so it doesn't end up with an audit finding.

Shannon said Gutierrez should confirm if it meets procurement and then bring it back to the group at the next meeting. "Postpone it until the March meeting to make sure we are following procurement code correctly." A motion was made and passed.

The next item was public comment.

Young Illimani Lopez read an essay about Brother River and gave it from the Native American viewpoint, saying the river is sacred ground as are the trees and mountains. He alleged the "whites do not understand.... They kidnap the Earth from their children and they do not care. Their fathers' graves and their children's birthright are forgotten by them. All things are connected. Whatever befalls the Earth, befalls the sons and daughters of the Earth." He also alleged the "whites think they are God... The whites walk the desert in their loneliness. That's why I think everything you're doing is illegal." Illimani continued: "You don't care about water. You'd rather drink gasoline. Your cows like water more than you. Thank you."

Hueteotl Lopez, Illimani's father, said he had timed his response and it was exactly three minutes. "We reiterate that we oppose you, a small group of ranchers and irrigators, only 60 of you, who come here to represent Grant County and by extension all of New Mexico. We oppose every one of you as you sit in our sacred seat of Grant County government."

He gave the reasons including remaining an unelected self-appointed group of private citizens trying to take control of the community's water and the Gila River. Lopez continued his monthly attack on Gutierrez alleging Gutierrez enriches himself and a small group using public money. Lopez also alleged the group pays no attention to those who oppose the diversion and has not followed democracy by not obtaining a unanimous decision to take the water. "You didn't heed Silver City's wisdom" when they chose not to participate.

"We are the Gila River Water Keepers in solidarity with those opposing the filthy energy of the Dakota Access Pipeline, with our Apache brothers in Arizona resisting the Rio Tinto project and in Texas resisting the filthy energy of the Trans-Pecos pipeline. We oppose you on social, spiritual and socio-economic grounds. Our first step is right now to initiate, because you have no respect for our wishes and loving Mother Earth, and announce a boycott of any of your project businesses. You have no mandate."

Claudia Duerinck, resident of Gila Valley, said in 2015, the ISC issued an RFP to solicit bids for the 30 percent design necessary for the NEPA process. Two finalists were interviewed and on Nov. 6, 2015, Gov. Martinez's political action committee received $1,000 from AECOM, who later was awarded the bid. "AECOM violated the procurement code by making a political donation during the pendency of procurement. It is an illegal Act and the ISC's lack of due diligence. There is no do-over. They broke the law and have wasted massive amounts of taxpayer dollars with their $1.4 million contract. AECOM's contract must be terminated."

Maria Garden said she is from Luna County, which she said is the largest population center in the four counties. "I am asking for changes to the joint powers agreement to allow for funding for water projects in the four counties. The JPA gives $100 million for projects for less than 1 percent of the population, the agricultural community. Deming will not receive any water nor will Silver City. We are 60 percent of the population. I urge my CAP representatives to look out for the interests of Luna County. You can use the money for any water project."

Carol Fugagli, representing the Upper Gila Watershed Alliance and the Gila Conservation Coalition, said the JPA would eliminate any project other than a New Mexico unit. "It is critical to also consider non-diversion projects. The language is clear in the Arizona Water Settlements Act. Sen. Bingaman ensured funding was available for non-diversion projects." She asked the entity to consider the full range of alternatives, which are in the statute. "All must be explored. They must be an integral part of the process. Ignoring the non-diversion projects ignores the meaning of the statute. The CAP Entity has ignored beneficial water needs."

Gerald Schultz, representing New Mexico Natural Resources and Conservation Districts, said he would be doing more research on the issue, "but the funding is federal. Public funding mandates public involvement. I understand what Norm Gaume is going to present. It's inflow equals outflow. It will be necessary to augment the amount of water." He noted that Mary Reese of the Bureau of Reclamation sends out information, and encouraged every one to look at the article on the water savings of a single family home gray water system. He gave the website for the article as allianceforwaterefficiency.org.

Ron Troy of the Hondo Valley said he appreciates the challenge the entity is up against, but "as a concerned taxpayer in Grant County, these issues are old and cut across the West. A lot of you are water users interested in using the water. Why can't you involve people such as Allyson Siwik and Donna Stevens? Why are Game and Fish, the Fish and Wildlife Services and the Forest Service not part of this group? The Forest Service continues to work on water projects. If you include them, perhaps it will lessen the number of lawsuits the entity will face."

Hutchinson asked Troy who he was affiliated with and Troy named the New Mexico Land Conservancy. "Success equates to competency and trust. How were the bid specs put out? You need clear specifications. If you work with others, you will have better outcomes."

Dr. Michael Brown, a resident of Silver City for 26 years, said he remembers when two water lawyers were talking about whether the Gila River has the right to exist. "They decided it did, but only if there was an economic benefit." He referred to Stewart Udall who said, in water law, "water runs uphill to money. " "You need water for Hurley. There hasn't been a benefit in Silver City, but it will get increases in water rates."

Lee said he lives in Virden on the Gila River. "I want to speak briefly of the flow. For the past six weeks, we have had flows in excess of 900 cubic feet per second. Around Christmas, we had 500 to 5,000 cfs flows at the Virden Gauge. At the Gila Gauge, it was less. We have an acre-foot of water going by every six minutes. It's a shame it's going straight to Arizona. It's a shame we don't have any storage. We could use that water when the river runs dry this summer. Since 1968, it's a shame not to be able to use it and keep the river alive in the summer."

Gaume set up his computer to give his presentation and project it on the screens.

"I am a retired licensed professional engineer, specializing in water resources and management," Gaume said. "I have given each of you a letter that explains the details of the model I'm about to present. It is modeling the yield as authorized under the Arizona Water Settlements Act and Consumptive Use and Forbearance Agreement to quantify supply. Most of the water is obligated to be delivered to Arizona. The AWSA has a limited water right on the river. It is the most junior on the river."

He said the second part of his presentation would be to model what goes into a reservoir and what one can get out is the yield. Storage can be used when the river runs dry.

"What is surprising is that in all the studies, we have seen no official forecast of how much the yield of water will be," Gaume said. "This is the first time it's been done."

He showed a chart of the mean and median historic stream flow, with a solid line as the mean of the 79 years of record. Gaume said the tiny bit of yellow showing at the very bottom of the chart was the divertible flow under historic conditions. "The blue peaks are rate, only occurring in an average of 100 events over the 79 years. It's feast or famine. If you don't get it, it's gone and you might not see any more to capture in two or three years."

Gaume also showed a chart of what was legally divertible, according to the Consumptive Use and Forbearance Agreement. He also showed a map of where the diversion was projected to be and where the storage units are, Spar Canyon and Winn Canyon.

He said the starting point of developing the model was when the ISC put its model on the nmawsa.org site in April 2016. "When my colleagues and I reviewed it, we found careless mistakes, formulas without the correct flows. We corrected them. We pointed out the errors that were not subjective. We corrected the errors, and will develop an errata page. They underestimated the seepage. Our intent was to show the maximum yield possible. The ISCs model did not simulate the yield, but only simulated the days the reservoirs were dry. We calculated the yield. We simulated the two reservoirs, one with 800 acre-feet of storage and one with 3,500 acre-feet of storage. My letter explains it."

Gaume's model simulates different releases in May and June and "we played around with the numbers. You can turn on or off the evaporation rates. The rest of the table shows bypass when the reservoir is full. We believe water is available for use 4 percent to 14 percent of the time."

He said the reservoir losses in the ISC model are too low, "but I said we would conservatively show the maximum yield." Gaume estimated the shortfall of yield at 27 percent to 58 percent average in the 79 years, and that the 30 cfs could be satisfied 40 percent of the time.

"In 25 percent of the years, you get no water," Gaume said. "When you have small reservoirs as these are, they are good only for that year.

"It is incredibly difficult to show benefits with these storage areas," he continued. "It requires an efficient reservoir, a large reservoir of 64,000 acre-feet, which was included in the billion-dollar alternatives the ISC was pushing and which the CAP Entity rejected."

Gaume also noted that Bill Evans Lakes does seep at 600-700 acre-feet a year.

"I want to conclude that this model is publicly available, but it takes a large gaming-type computer to run," he said. He told the Beat later that one of his colleagues had purchased a large computer with a 64-bit version of Excel specifically to run the model, because his laptop could not run it.

Gaume said he has heard that the agricultural users need water in May and June, but the historic record shows the need in June and July. "The Nature Conservancy report goes into detail on this in the last part of Chapter 2. Compare it to the CUFA chart. The dry period is coming early."

Campbell said he spent a lot of time on the Sandia Model. "I enlisted a software expert at Sandia. We re-ran the large program Sandia created. You, Mr. Gaume, have a built-in prejudice in that graph. It's an average. We are not taking water out of an average river. The ISC model has the actual years. Yes, probably there is no water with means and averages, but that's not the real world."

He continued by saying he did not find a large number of errors in the ISC model. "I did a standalone study for Mogollon Creek. "The ISC work is not bad. The only problem is that it is so big, it is hard to get a big picture of the situation."

Gaume refuted the statement saying: "he is the one who is incorrect. The only time I used a mean was this graphic." Gaume said he used the flows since 1936, plus the flows of the San Francisco River and Blue Creek. "I used the daily rate to see if we can get water into the reservoirs. I did this 30,000 times."

Campbell said he took each day, but did not average anything. "My graphic does not resemble yours."

Gutierrez went to the next agenda item, which was to discuss services to complete the 30 percent design of the New Mexico Unit configuration. "I will not comment on the AECOM contract, because of potential litigation. We would like to prepare ourselves in case the contract is terminated. We have already approved hiring an engineer. I disagree that all this money was wasted because we still have the work done by AECOM. It is public information."

He said his discussions with The Nature Conservancy to place part of the proposed unit on TNC property had been determined as "not in the TNC's best interest."

"With the preliminary report available, potentially an engineer can come aboard and finish the work," Gutierrez said. "I haven't spent a lot of time reviewing the ISC or Gaume's model."

He said he wanted to address some of the comments made earlier by Illimani Lopez. "No matter what your color is, the partners in the AWSA are the San Carlos Reservoir and the Gila River Indian Community. While we can be accused of wanting to use the water, the Indian communities benefit from the exchange. We're not doing anything that they haven't already done."

Lee said he had a comment and a question. "My comment is that for many people, their groceries come from the shelves at stores. My question is: Have we utilized engineering services already approved?"

"No," Gutierrez said. "Once we get an engineer hired, we will determine how feasible it is to work with Freeport."

"I'm interested in getting another engineer," Lee said. "There may be other ideas that are out there."

"We can't talk directly to an engineer," Gutierrez said. "We have to go through the ISC. We have to act quickly on procurement for engineering services. We are not up to 30 percent design, so if we are going to make changes, now is the time. In our proposed language, it may change the proposed action."

He also commented that people who have been involved in the process for only a couple of years "don't understand what we've already gone through in the past 12 years."

Gutierrez asked for approval for an RFP for engineering. Hutchinson asked if it was being done as a contingency if the AECOM contract is terminated, to which Gutierrez said: "Yes."

Hutchinson said to ISC Attorney Dominique Work, who was on the phone: "I would express concern with the amount of money already expended that the product already done be made available to the ISC and the CAP Entity."

Work said the language in the contract, in case of termination, provides for what has been done to be given to the ISC and the CAP Entity.

Gutierrez said the city of Deming and the ISC have standardized forms for engineering RFPs. "We can combine, add or subtract to show we have done our due diligence. I'm asking for one month to put the RFP together."

Massengill asked for time be set aside for legal review by Deming's attorney before presentation to the CAP Entity.

A motion was made, seconded and approved to go forward with development of an RFP to seek engineering assistance to complete the 30-percent design of the project.

Gutierrez asked for discussion on the draft purpose and need. "It was put together by the joint leads. There is no action required for us to accept it. There is an avenue later for comments during the scoping period."

Hutchinson asked that the San Francisco River be included in the second line of the first paragraph. "Later on in the purpose and need, it does include the San Francisco."
Gutierrez said the first paragraph is language in the Act (AWSA).

Lee said to partially justify not listing the San Francisco in the first paragraph is that the San Francisco is a tributary of the Gila River, but not in New Mexico. It doesn't run into the Gila Rive until it's in Arizona.

Gutierrez then began his executive report.

"I have been in discussion with the ISC to change the JPA language," Gutierrez confirmed. "I don't have a draft yet. Mostly it was to address our discussion with Freeport. NEPA will address non-diversion projects. Our proposed action is for a project, not a group or fix-it-all process."

He addressed an earlier comment about the Entity working with other water groups. "In our several year stakeholder process, we had representatives from a lot of different entities. It was a rather large group and we got nowhere. Every individual process is still the same. The anti-diversion folks didn't give. The pro-diversion folks didn't give.

"But through the process, we have gotten a lot of input," Gutierrez continued. "We have taken public comment and put it into the design. The present design has less impact than the original design. We do have alternatives to fall back on, but it will still have reservoirs, pumps and pipelines."

He noted legislation, Senate Bill 340, has been introduced into this year's session. "It has to do with being able to justify the money being spent. I reminded Senator (Howie) Morales, who called me, that we are trying to make everything as reasonable and efficient as possible. I am putting together comments on the legislative language. It's not right for a committee to say whether this study is right or this one is wrong."

Shannon said she would very much like to have Sen. Morales come to talk to the Entity, even in a special meeting to allow him to divulge his concerns. "We have concerns on both sides."

"I have had discussions with Senator Morales that he has only represented part of his constituents," Gutierrez said. "He contacted me about this bill, so he could ensure that no language was detrimental to this board. They are open to language changes. It's not a question about agreeing or not on a diversion, but on accountability.

"I think the question of feasibility is not just 2016, but the feasibility in 2050 or 2100," he continued. "What we're doing is building a foundation for the needs now and in the future."

Shannon encouraged all members of the entity to be able to travel to Santa Fe when the bill comes up.

"I encourage the members to represent their individual entities," Gutierrez said. "We want to satisfy the transparency and accountability, which are part of the bill."

He said people continually talk about the $50 million available right now. "We still have the construction dollars to build something. Maybe not as large as first envisioned, but our agricultural community is our sustenance."

Hutchinson said it was not likely that Morales would be able to break away to present to the entity. "It is incumbent upon each member of this board to express themselves to Morales and the other sponsor, Sen. Sander Rue. Be specific. They don't have a lot of time. The New Mexico Legislature is one of the most open for people to talk to them."

Ramos said they "are just waiting for us to knock on their doors. I encourage everyone to go up there, call and set an appointment, and make sure you're flexible."

Entity Attorney Pete Domenici Jr., on the phone, said he just received the bill a couple of days ago. "I will walk through it quickly, so we can have a discussion. It's important to contact other members of the Legislature, because they are just as important. It's not just a local bill. It's not a complicated bill. Some pieces would not have significant impact on us and other parts would have impact on us accessing the construction funding. The requirement for four sign offs on funding are duplicative. They have the potential to make it almost impossible to access construction funding. A couple of the pieces are in there to make it extremely difficult to get a unit constructed."

ISC's non-voting representative on the CAP Entity, Kim Abeyta-Martinez said the ISC is still in the process of reviewing the bill. She said Section 6 refers to public finance. "We have to present the budget through the appropriation process."

Work said a substantive change is a reference to NMSA statute. She said the fiscal impact would be a public document. "We will make sure you have a copy. I'm happy to talk to your attorney." Domenici confirmed he would like to talk to her about it. "Changing from Chapter 11 of the NMSA to Chapter 6 could have a significant impact. We need to make the board understand how it can change things."

Abeyta-Martinez said the process for submitting the annual budget has been using the Chapter 6 process. "The downside is that three boards, the Legislature and the Department of Finance have to approve. Our being able to request funding through a budget adjustment doesn't change, but the legislation has the downside of giving the Legislative Finance Committee the option to reject a BAR and requiring a public hearing."

"Some of this bill is solely to prevent us from moving forward," Gutierrez alleged. "I'll have a meeting with the legislators and hopefully we can address our concerns."

Hutchinson said the entity would not have determination on whether it can move forward until the NEPA process is completed. "This bill puts a Catch-22 in so no money can be expended for water conservation or diversion. It's created to hamstring the ISC and this body from spending funds."

Domenici said some of the terms are not defined. "The language is broad and vague."

He said his office is prepared to make a one-hour presentation on the history of the project "all the way back to the compacts and legal decisions to give everyone a framework for the AWSA."

Shannon suggested the presentation be made at the April meeting.

The next meeting of the New Mexico Central Arizona Project Entity was tentatively set for 9 a.m. March 7, 2017 at the Grant County Administration Center.