By Mary Alice Murphy

As there was no public input at the beginning of the New Mexico Central Arizona Project Entity meeting on Monday, June 11, 2018, after preliminary approvals of agenda and minutes, the members got straight into the business of the day.

The first item of old business was to discuss the changed language in the second amendment to the joint powers agreement.

Vance Lee, representing Hidalgo County, pointed out that some of the signatory names on the document were incorrect.

Chairwoman Darr Shannon agreed that several changes needed to be made.

Howard Hutchinson, representing the San Francisco Soil and Water Conservation District asked why language on page 6 had been stricken out.

NM CAP Entity Attorney Pete Domenici Jr. said the changes were made when they were meeting with the Interstate Stream Commission. "The ISC wanted the details left out. Agencies will formulate policies. We will have to develop guidelines and rules."

ISC Attorney Dominique Work, who was attending by telephone asked to elaborate further. "We felt we would want more precise language in policies rather than in the JPA. So, if the policies needed to be amended, it would be a simpler process than amending the JPA again."

Hutchinson asked if each entity would have to execute an entire copy of the document or just the amendments for the signatory page.

"The DFA (Department of Finance and Administration) has to approve the amended document," Work said. "Each entity has to approve the entire document. When all the signatures are compiled, they will be put on one document for DFA."

Lee asked for confirmation that every entity has to sign the document for it to be approved. "And will each entity have a resolution and each entity will sign a signature page? If one doesn't sign, it doesn't get done?"

NM CAP Entity Executive Director confirmed that the signature page is what has to be sent in. "If we change the language more today, it has to be sent to the ISC again. And yes, every entity has to agree to it, or it doesn't go anywhere."

Work said it might be a good idea for the members to say if they are comfortable with the changes in the language. "It's best to get the approval from each entity before signing the signature page."

"We take it to the ISC for final approval, after we have all the signatures," Gutierrez confirmed. "And then it goes to the DFA."

She also pointed out later edits on pages 7 and 9 that made it clear that no additional funding for alternate projects would be considered or expended until after the issuance of the Record of Decision, which is due in December 2019.

Domenici said the language should be the exact same as on page 4, where it stipulates "after the issuance of the Record of Decision by the Secretary of the Department of Interior for the proposed NM Unit…"

Hutchinson asked why the duplication is required. Work said the ISC would like the duplication to make sure it's exactly the same throughout the document "to make it crystal clear everywhere."

The motion was made and approved

The next item of business was to discuss and possibly act on the removal of adjudicated water from the storage components of the proposed action.

Gutierrez said when they were looking at including the adjudicated water in the stored water, they ran into some issues that would arise with the Office of the State Engineer. Secondly, "if the adjudicated water is set as the baseline and if in the NEPA we needed water for mitigation, it would have to be taken from existing users' rights, perhaps cutting their allocations. We will continue to utilize the adjudicated water as the baseline for NEPA, and the AWSA water would be in addition to the adjudicated water."

He noted the next item of discussion on the agenda was the request for a project confirmation package. "We would make it clear in a letter that the adjudicated water would not be included in storage."

Lee said he had a little heartburn over the change. "I'm thinking of a scenario where because of the CUFA (Consumptive Use and Forbearance Agreement), we might not be able to store enough water, but we could store our adjudicated water in January and February to use this time of year."

Gutierrez said he thought "it could happen outside of this process. We will still have the baseline information and will be able to fulfill adjudicated allocations."

Allen Campbell, representing the Gila Hotsprings Irrigation Association, said he had the same reaction as Lee. "If we should shut down the use of adjudicated water in the NEPA process, there is a potential for a monkey wrench by the environmentalists. Maybe the language could be stated that storage of adjudicated water could not be prevented. I don't trust the other side. They are deeply committed to destroying this opportunity for economic reasons."

"We can't remove the adjudicated water from NEPA, only from storage," Gutierrez said. "Water rights owners will still divert, still use the water, accounting it to the OSE. Maybe we can do an amendment someday to utilize the adjudicated water in storage."

Joe Runyan, representing the Gila Farm Ditch, said it seemed logical to him to separate the new water from the adjudicated water.

"We are not removing the adjudicated water from the NEPA," Gutierrez emphasized. "It has to be provided to the users."

Lee said he would like to see the users have the ability to put adjudicated water into storage when "we don't have AWSA water."

Campbell said he didn't like prohibiting storage of adjudicated water. "We're storing evaporated water; we're storing return flow, but we can't store adjudicated water. We have to work with the state engineer anyway. I say do not prohibit storage of adjudicated water."

Esker Mayberry, representing the Fort West Ditch, asked: "Why do we want to remove adjudicated water from storage in this document?"

Domenici said: "The notice of intent is to be published in the Federal Register any day. The level of detail to determine the amount of adjudicated water, when it would be stored, who takes the loss of evaporation, are a set of analyses we can't accomplish and stay on track. We may or may not be able to put adjudicated water in storage, but we, the entity, will own the on-farm ponds. If a person says he wants to put his adjudicated water in a CAP Entity pond, it would be fine."

"It would be very hard to study," Domenici continued, "and it would be better to do the study once the ponds are built, although we may have to go through a small NEPA."

Work said Domenici was "absolutely right. Right now, for the baseline, we will use the adjudicated water the farmers use, as well as the return flow without storage. It would have to be studied. It saves money to not put the adjudicated water into the New Mexico Unit. After the ponds are built, then you may or may not have to have NEPA."

Lee said he understood it better, "but Mr. Domenici may have to talk to some farmers."

Gutierrez said the summary he presented does not include adjudicated water in storage. "I wanted to make sure we have all hashed it out before I put the letter together. This document does not specify what type of water."

Hutchinson noted that in the state of New Mexico downstream users of water storage sites can store their water in these sites. "We already have precedents in New Mexico. My understanding of the NEPA no action alternative would state using the present adjudicated water with no new water. You have to look at the baseline flows as they are today times the amount flowing times the amount used, and then take additional water with the proposed action. The difference is what NEPA looks at."

Campbell said he understands that the discussion will not be remembered, but what is written will end up in court. "If we drop the language, it is not prohibiting us from storing the water in the future. Go ahead, get it done, the precedence is there."

Domenici said he understood both sides, but the complications come in with the storage. "Some will be lined, some unlined. We have no intention of prohibiting storage of adjudicated water in the future, but we don't have time to realistically analyze the storage of adjudicated water."

Ty Bays, representing the Grant Soil and Water Conservation District, said he, too, understood the concerns. "I think after the sites are built, the water owner can apply under OSE rules. If I made an agreement with a private owner, it would still have to go through the OSE. I don't see it as a huge concern."

Hutchinson said it had been a useful discussion. "I think it's an OSE question. My concerns have been alleviated."

Campbell agreed and said he believes it says in the Arizona Water Settlements Act and in the NEPA process that once water is captured, it's managed through state engineer regulations. I will remove my objections."

Gutierrez clarified that if he removed the words 'adjudicated water' from the sentence, it would not affect any other part of the proposed action. Domenici concurred and said it was only removing the storage of adjudicated water.

Hutchinson made the motion and it was seconded and approved.

U.S. Bureau of Reclamation Phoenix Office Engineer Jeff Riley gave a quick update on the posting of the Notice of Intent in the Federal Register. "It will go into the Federal Register tomorrow, June 12. The public scoping meetings should start the first week of July. We will have eight meetings. The first will be in Albuquerque, then Chandler, AZ to San Carlos AZ, Silver City, Cliff-Gila, Glenwood, Virden and Safford AZ."

Shannon asked: "Why Albuquerque?"

"It was decided on by the joint leads (Reclamation and ISC)," Riley replied. "There's a lot of interest there."

"Very interesting," Shannon said.

Riley listed Maricopa, AZ. It was not in the newsletter asking for input, but to a question he said it was for the Gila River Indian Community.

Hutchinson said he understood most of the others, but "Albuquerque is not on the Gila."

Work said the scoping meetings are not about a particular location. "Albuquerque is centrally located in New Mexico. There is a lot of interest by the pueblos and tribes, because the NEPA may find artifacts. Yes, there is a large group of opponents to the project. Scoping allows opposition."

Bays asked why not Las Cruces, Hobbs, Clovis or Roswell.

Work said they considered Las Cruces and Deming. "A large group has to travel to the meetings, which makes it more expensive."

Campbell pointed out that the expenses could provide economic benefits to those places where they stay. "This is pandering. I would rather see more economic benefits here."

Hutchinson said when Santa Fe and Albuquerque were proposing using the San Juan/Chama water, "they didn't have a meeting in Silver City. It seems that sauce for the goose is getting the gander's sauce jammed."

Bays said it would make more sense to have the meetings in Deming, Lordsburg and Reserve. "Likewise, we as proponents will have to travel to Albuquerque to protest what we want."

Ramos said his concern is that people should have to come see the Gila and the "diversions we already have."

Van "Bucky" Allred, representing Catron County said he would stand in agreement to the objection to Albuquerque.

Lee agreed and said he would hope it could be changed not to have a meeting in Albuquerque.

Shannon noted: "We go to Albuquerque a lot. Create economic development here."

Bays said: "We are the project proponents and we should have a say."

Dave McSherry, representing the city of Deming asked: "Will they damage the efforts of the New Mexico CAP Entity? Will this position of the entity damage our efforts to move forward?"

"We are in the process of booking venues," Work said. "They have been approved by the Department of the Interior. I believe it's the prerogative of the joint leads to choose the scoping places."

Bays said: "We would like to find out the information sooner rather than one day before the NOI is dropped."

The rest of the meeting will be covered in a future article.

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