Members request control to construct, operate and maintain the NM Unit

{Editor's Note: This is the final part of a two-part series of articles on the July 3, 2018 meeting of the NM CAP Entity.]

By Mary Alice Murphy

In new business at the New Mexico Central Arizona Project Entity regular meeting on July 3, 2018, members addressed whether they want to have authorization to construct, operate and maintain the New Mexico Unit.

In the 2004 Arizona Water Settlements Act, the entity, which is the successor to the Southwest New Mexico Water Planning Group, has the right to request authorization to construct, operate and maintain the New Mexico Unit, for which they are seeking approved by the end of 2019.

"I wanted to bring this to the attention of the board," Entity Executive Director Anthony Gutierrez said. "It could change our costs, if the CAP chooses not to request from the Secretary of the Interior authorization to construct, operate and maintain the New Mexico Unit. If we choose not to make this request, the Bureau of Reclamation could potentially take over the responsibility. That would change the cost of the overall project. But it could also change the look of the potential requirements, such as the rights-of-way for maintenance, where we are trying to avoid any additional impact. This is a good time, as we get into the NEPA phase, as we do the initial designing, to make this request, if this body feels like it wants to take on the responsibility. There would have to be changes made, I presume. Some of the things we might have to consider would be the second fiscal agent. I am opening it up for discussion."

David McSherry, representing Deming, which serves as the second fiscal agent, asked for clarification if it would include the operations and maintenance.

"So far, we have only requested construction planning funding," Gutierrez said.

McSherry asked if the operations and maintenance would be included pending the business and economic plan. "It's good we start talking now."

"Some part of the plan will be on operations and maintenance," Gutierrez said. "The potential benefits will be in the plan. The engineering design will include operations and maintenance. We want to keep the conveyances as they are now because of the habitat they provide. If we have to have a road for access to the unit, it could be right along the ditches. We need to know that now for analysis."

Howard Hutchinson, representing the San Francisco Soil and Water Conservation District, said, watching (Bureau of Reclamation engineer) Jeff Riley's face, "he believes they can be separated. "We could elect to do the construction or the operations or the maintenance."

Gutierrez said the entity could have a contractor to do the actions. "We could continue with the same second fiscal agent or have different ones in the San Francisco and Gila basins. "We will need access for maintenance of the infrastructure and that needs to be part of the discussion now."

Hutchinson made a motion to ask for authorization to construct, operate and maintain the New Mexico Unit.

CAP Entity Attorney Pete Domenici noted that the Act states: "If we request authorization, the Secretary shall give that authorization. We can do any of the above. By statute we own all the components. I think the more seamless request is to ask for construction, operations and maintenance. Having the Bureau of Reclamation doing any part would be onerous."

Allen Campbell, representing the Gila Hotsprings Irrigation Association, said he thought most of the member were looking at the proposed action as an irrigation project. "We build them and maintain them. I can't see where we can separate them. Management is difficult, but if we set up the business plan and talk to the individuals using the water in their ditches, we can do it. We want the ditches owned by the main ditch owners. It would be complicated to separate them, and, for instance, have Reclamation managing the Gila Farm Ditch. We are already running the ditches. We need to start applying for these privileges."

Vance Lee, representing Hidalgo County, said: "Even though, we, as an entity, own the storage and diversion, we wouldn't take ownership of the canals."

Domenici said there could be leases or operating documents between the users and the Entity.

A motion was made to request from the Secretary of the Interior the authorization to construct, operate and maintain the unit. It was approved unanimously.

"We can put together the draft letter for next meeting," Gutierrez said.

The next item of business was the executive director report and roundtable discussion among the NM CAP Entity members.

Lee said: "I wish Mr. Gaume were here so he could understand our frustration with his latest maneuver on the complaint. I want to respond that it's a damn shame we have to use our time and resources to answer obviously unfounded complaints. Norm did not do his research and caused the ISC, the city of Deming and the CAP Entity to expend funds that I presume came from the New Mexico Unit Fund and could very well help us to meet water supply needs in the four counties. I want to second the comment by Mr. Bays not to allow Mr. Gaume to speak to us. He has lied to us. He never ceases to let us know how little he thinks of us, about how much he knows and how little we know, and then he files complaints against us."

Hutchinson said something he has been pondering is a concern about using ground water by land that has no water rights. "Will the Office of the State Engineer be brought in to be a cooperating agency on this project?"

ISC Attorney Dominque Work said to her knowledge the OSE had not been invited to be a cooperating agency.

"If we get a unit or units built," Hutchinson continued, "the Office of the State Engineer will have to administer new water uses. They will have to determine if there are impacts to existing adjudicated water rights."

He said when he has been looking at how a person can access the AWSA water, the person will have to pay to drill a well and pay for the exchange costs. "As there is no federal nexus on this situation, if we're going to use the water on these lands, will we have to analyze them with NEPA? Will we have to get hydrological analyses or archaeological analyses, if all of this is on private land? The state engineer will have to approve, even if the only federal nexus is that it's AWSA water. In looking at who is the final user, the Secretary of the Interior shall contract with the users to utilize the water. I think we need the state engineer involved now."

Work said she is told that the notice of intent to begin NEPA was sent to Lloyd Valentine (the area watermaster in Deming) and to the OSE.

"The ISC is in a stretched position to ask its sister agency to be a part," Work said. "I think the OSE should be a cooperator, but I'm not sure it's the ISC that should ask."

She said any water user contract could be modeled on the one the Arizona Central Arizona Project Entity uses. It's one contract with the Bureau of Reclamation, which subcontracts with all water users in Arizona. "You might want to think about that. You are limited by your JPA, but you might want to become a political subdivision."

Hutchinson said he would look at the construction of water districts and talk to one of their representatives to get answers. "We would need to decide whether we want to go through that process to become a political entity. It's complicated and will require legislative action. It's a bridge to cross when we have more information. The ISC has jurisdiction over what we're doing and the OSE is over all of it. It's why I've asked for invitations for cooperating agencies months ago. I asked for one for the San Francisco Soil and Water Conservation District. They said here's the form and I had to take it to my board within 30 days for approval. My question is if groups want to be cooperating agencies, can they do it later? But then they might not be privy to the scoping documents?

Work said she didn't believe that the 30 days was a requirement. "If it takes longer than 30 days for the MOU (memorandum of understanding), I don't think it's an issue."

Hutchinson said he looked over the MOU draft and it did a good job of laying out the duties of the joint leads and cooperating agencies.

Domenici returned to the issue of groundwater. "The potential to divert AWSA water through ground wells is frankly extremely important to implementation of the AWSA. It will require an analysis and research of state law, for sure. It may also involve an analysis of CUFA, which may or may not have contemplated that. I'm not sure it precluded it, but I don't think it set out clear protocols on how to accomplish it. The CAP Entity would benefit if the state engineer were a cooperator and perhaps could look at that issue. The state has its own regulations for supplemental wells. These are not supplemental wells, but wells to use new water. It falls in a unique situation under state law. It also falls in a unique place under CUFA. Those two complicating factors may make you say it's not worth it to figure out. But the benefit is potentially very large. Diverting the water and storing it and getting it upstream is problematic, but wells could be practical. We don't want to detract from what we're doing now, but we don't want to say someday, oh, we could have done that and not had to divert surface water. Now that we've identified it as an issue, I think we should tackle it. Maybe task it to engineers to look at the CUFA and see if it will work. It's an important issue to focus resources on."

Hutchinson said he had looked at it and found it was a common practice. "I have one water right that I have taken from a ditch and put it into a well upstream and I did it with another water right and put it in a well downstream. Groundwater use utilizes less water than surface applications."

Gutierrez said on that issue, one of the benefits of Stantec buying out Occam was that they have unlimited resources to look at issues like this. "Scott Verhines has done it on the east side of the state. There is also the potential of creating an entity to address Lee's comment. We have done substantial work on IPRA (Inspection of Public Records Act) requests. The last one was for eight months of time. It took me five-to-six days of my time for over a thousand pages of documents. The ISC and Deming also received the same requests. And that request has yet to be looked at. We are spending tens of thousands of dollars preparing these IPRA requests. It's our obligation to provide the information. But, as they are from those who constantly complain about our spending New Mexico Unit Fund money, it's amazing to me that they don't even look at them."

He said at the public hearing in Albuquerque the previous day, "I felt it was beneficial. I take it as a challenge to provide positive information. There were 40 to 50 protesting. I spoke to 30 or 35 of them. I think they left with a better understanding of what we're doing. There will be more public hearings and I encourage board members to attend. I encourage irrigators, landowners, business owners to give input on the potential benefits. I encourage public participation not only from the opponents but also from the proponents."

"We are making sure we get permission for access for the NEPA process," Gutierrez said. "We have had several deny access for endangered species, but we may need access for the biological surveys. If they deny access where the species may not even exist, then the assumptions are that all endangered species are present and the project will cause significant impact."

Ty Bays, representing the Grant Soil and Water Conservation District, asked if the IPRA requesters are public information.

Chairwoman Darr Shannon said yes. "Mr. Wolf with the Center for Biological Diversity made the request on behalf of Mr. Gaume for the eight months of information. And, Anthony, what you're saying is that you spent all that time and money and no one has come to look at it?"

"That's correct," Gutierrez said, "and we provide both a hard copy and a digital copy for review. And they haven't reviewed the prior request either."

Domenici said the requests are always public record.

"Anyone can review them," Gutierrez said.

Hutchinson, on another topic, said that anyone who had a well can request monitoring through New Mexico Tech through the department of geology, and "they will monitor it. The individual has to agree to have the monitoring equipment installed, and they need wi-fi access. Stacey Timmons is heading up the statewide monitoring."

Riley said he started thinking about the visit to the Weedy site in Catron County. "I suggested we get geological technicians from Denver to look at it. I had some concerns."

Hutchinson said yes, the county is interested. "If it will benefit your protocols, I will send a request."

Valentine said he couldn't speak to whether the OSE would like to be a cooperating agency. "But we would like to work with you. We're available."

The next regular meeting is set for 10 a.m., Tuesday, Aug. 7, at the Grant County Administration Center.

The upcoming scoping meetings are as follows:
SILVER CITY, NEW MEXICO: MONDAY, JULY 9, 2018, 4-7 PM
Grant County Veterans Memorial Business and Conference Center, Multipurpose Room
3031 Highway 180 East
Silver City, NM 88062

CLIFF-GILA, NEW MEXICO: TUESDAY, JULY 10, 2018, 4-7 PM
Cliff High School, Old Gymnasium
622 St Hwy 211
Cliff, NM 88028

GLENWOOD, NEW MEXICO: WEDNESDAY, JULY 11, 2018, 4-7 PM
Glenwood Community Center and Library
14 Menges Ln
Glenwood, NM 88039

VIRDEN, NEW MEXICO: THURSDAY, JULY 12, 2018, 4-7 PM
Virden Community Center
110 Richmond Ave.
Virden, NM 88045

SAFFORD, ARIZONA: FRIDAY, JULY 13, 2018, 4-7 PM
Graham County General Services Building
921 Thatcher Blvd
Safford, AZ 85546

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