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Published: 14 November 2018 14 November 2018

Discussion continues on new business items

By Mary Alice Murphy

Before addressing the new business item on consideration of an amendment to a motion made at the September meeting, Vance Lee, representing Hidalgo County, said he wanted to address what caught his eye about the next agenda item.

Members of the New Mexico Central Arizona Project Entity, under the second item of new business at the Nov. 8, 2018 regular meeting, were to consider amending a motion from the Sept. 4, 2018 agenda.

"We are not specifically following Roberts Rules of Order," Lee said, "but we sort of do follow them. In them, it says an entity cannot amend an action or reconsider an action from a previous meeting. It can, however, rescind the item. Anything already executed stands."

Howard Hutchinson, representing the San Francisco Soil and Water Conservation District, said he had requested the motion be reviewed. "That could include rescinding and proposing a new motion. My motion was to authorize the executive director, in conjunction with the engineering contractor and counsel to respond and communicate to questions from the joint leads." The issue at hand in September were emails from the Interstate Stream Commission Director John Longworth, dated Aug. 13 and 31 for requests for information.

"I would like it put on the December agenda to rescind the motion," Hutchinson said. "One of the problems has been that we receive requests for information or comments from (Executive Director) Anthony (Gutierrez). When we, as individual members, do not respond to the requests from anyone, including the executive director, we make it difficult for him to communicate with the engineer or counsel or the ISC or joint leads. When I receive these requests, I treat them seriously. I generally try to get comments back, within the timeframe he has requested. The problem I've run into is that the proposed action or project is a product of this board, and he cannot change it. Even if I have observed a flagrant error or a substantial deviation from what has been proposed. I'm told we can't change the decision of the board by the request of an individual member.

"The problem is that the proposed action has deviated from what we want on the San Francisco," he continued. "The proposal has higher costs. I made it clear that we wanted no proposed action until we had a discussion with the people on the ground. I get the same responses from the ISC and Reclamation. 'We can't be listening to an individual proponent of a project.' Everyone should be able to say that's not what we meant, so the public has the ability to analyze what is really going to happen."

Hutchinson said: "Catron County, the San Francisco Soil and Water Conservation District and the Grant SWCD have applied to be cooperating agencies. There is a whole level of work going on that we cannot disclose. It's what the joint leads and cooperating agencies are working on. We're having to fight with people who should be doing everything possible to get what we need for the area. My primary concern is the San Francisco. The joint leads, the cooperating agencies, counsel and the executive director should be working to get the maximum amount of water for southwest New Mexico. The ISC and the state of New Mexico seem to be doing everything they can to see that we will never get additional water. The state of New Mexico has spent 100s of millions of dollars defending the Rio Grande, the Pecos and water to Santa Fe, but doing the opposite to our getting a measly 14,000 acre-feet of water. Having to battle for this water seems incongruous."

He told a story of an old-timer who gave him a loaf of bread and jelly "when all we had was peanut butter. He said: 'When my neighbors do well, I do well.' Folks, we're neighbors."

Chairwoman Darr Shannon asked if errors shouldn't be brought back to the entity for correction.

"There have been time constraints," Hutchinson said. "I usually find them between meetings."

Lee asked about his comment on projects by the joint leads and cooperating agencies, "which you said we wouldn't recognize. What can we do?"

"Because you're not a cooperating agency, nothing," Hutchinson replied.

Joe Runyan, representing the Gila Farm Ditch, protested that Hutchinson had information "we don't have access to. What about open information?"

Hutchinson said that the cooperating agencies and joint leads operate under a memorandum of understanding with a provision that no member can release information on alternatives under consideration. "We cannot release any information outside the MOU. This is the way all environmental impact statements are developed everywhere. We have an anti-disclosure MOU. The public should know that the first thing the public gets is the draft EIS. "

Runyan accused Hutchinson of being an alarmist.

Gutierrez said, in regard to the agenda items, "I consulted with Howard. I took his answers, put together a file of all the minutes, all the work by the engineers, all the actions taken, and I did not find his proposal in any open meeting discussion or decision. We have data gaps. If I were to incorporate his comments, it would change the action. He's right, it would change the impact and costs. We put together the potential action based on information from open meetings. I have to protect this board from violations."

Shannon said any time a board member has an issue or concern, "you should put it on the agenda."

David McSherry, representing the city of Deming, said: "If you find conflict, I would expect you to call, the same day, the chairman and meet with her to rectify the error. It should be addressed as soon as possible. Maybe we need a technical committee, but it's probably too late."

Ty Bays, representing the Grant SWCD, said he thought it sounded like a personnel matter and perhaps the group should move into executive session.

Runyan suggested they return to the agenda.

Item VII c of new business consisted of two parts. The main item requested approval of a budget increase to the professional services line item for 1) engineering for NEPA support and design support with Stantec in the amount of $180,000. The second part was a request for reallocation of funds to pay an outstanding invoice to OCCAM Engineers, Inc. in the amount of $25,360.27.

"We are out of money in the professional services line item," Gutierrez said. "In providing information to fill data gaps, we still have some to fill. We have used up the money we had, and we are only halfway in the fiscal year. It's for one budget line item. We don't know what we will need for continuing NEPA support. Dr. Ward at NMSU wanted to develop a complete business plan, but we don't know what we have. The potential economic data we can provide based on the proposed action. This is the first step toward getting ISC to allow the increase in the budget."

Hutchinson said it goes to the point of the last discussion. "I see any number of places where there should be things specific to the San Francisco project. We get general summaries without detail. I see things that need to be done. The current business model looks at three types of irrigation and historic crops but doesn't look at specialty crops or high-value crops in greenhouses, for instance. If I vote today to support giving a blanket ability without some of the details, I might not get them. Geo-technical information has been remarked on in five or six field trips, but we need another examination of Weedy Canyon."

"There is no scope of work for that," Gutierrez said. "We have detailed scopes of work we have presented to the board. This is trying to put a price tag on what needs to be done."

Hutchinson asked what it was based on.

"All on the proposed action," Gutierrez replied.

"So, we will be analyzing what the San Francisco doesn't want," Hutchinson replied. "Anything I have wanted changed since then hasn't been brought before the board. It's not working for the San Francisco. Every time a new proposed action came out, there have been changes."

The meeting devolved into an argument between the two, and Bays reiterated that they needed to go into executive session.

After they calmed down, a motion was made and seconded on the increase in the budget. McSherry asked if the $180,000 would go into a scope of work.

"Yes, it if is approved by the ISC, legislative finance and the Department of Finance and Administration," Gutierrez replied. "Then we will have a definitive scope of work."

Lee noted the differences in hourly rates.

Dave Maxwell, Stantec engineer, said the hourly rates changed with the acquisition of OCCAM by Stantec. "Mine went down. Others went up."

The second part of the request was the reallocation of funds to pay the invoice to OCCAM.

"I take full responsibility for this one," Gutierrez said. "It slipped through the cracks. There were two invoices for the same amount. I thought they had been paid. Then the engineering firms changeover [acquisition] happened, and I didn't get another invoice until October."

Members approved the increase and the reallocation of funds, which would require a budget adjustment to the previous fiscal year budget to pay the invoice.

The final item of new business was a discussion on converting the NM CAP Entity to a political subdivision.

Shannon said Hutchinson had drafted potential legislation for the effort.

"My purpose is for us to have adequate time to reflect on this," Hutchinson said. "I hope we can put it for action at the December meeting. In the meantime, I would like to have the attorney think about it and give his opinion. It's based on other statutes for the purpose, and I have incorporated a number of elements from the JPA."

Bays pointed out the Grant SWCD was not listed in the draft, which was an oversight as the agency is the newest member.

Shannon said on the note of membership, the bylaws say that if an entity misses more than three meetings in a row, it should come off. "Santa Clara has missed more than three in a row, so it should come off the list." As for the legislative draft, "We need to study this document before we act on it."

Allen Campbell, representing the Gila Hot Spring Irrigation Association, asked if it should go to a committee first.

CAP Entity attorney Pete Domenici Jr. said the board hasn't had much success with committees. "For a first draft, I thought this was excellent. I think it's important. We will present it next month and work on it for the upcoming legislative session."

Hutchinson said if the members decided to go ahead and finalize the document, "it's just a matter of going through a sponsor and to the Legislative Council for the final draft."

Domenici said it should first go through the ISC.

Hutchinson agreed and said elements of the AWSA, including the ISC, should be part of the statute. For the Eastern Water Authority, it took them three sessions to get theirs approved, he noted.

Campbell said that it would add legal ramifications, and he would like it vetted by Domenici.

"I would recommend a red-lined version after discussion with the ISC, Howard and Anthony," Domenici said.

Hutchinson asked members to direct their comments directly to legal counsel.

A motion was made to send all comments to legal counsel and to have a copy of the draft sent to the ISC. It was approved.

In the executive director report, Gutierrez said he gave a presentation on the entity's proposed project to the ICID, International Commission on Irrigation and Drainage.

"I also did three requests for public information to Deming, communications with Freeport-McMoRan and one for NEPA communications," Gutierrez said. "I drafted a thank you letter to the San Carlos Apache Tribe for allowing me to present at their council meeting and said if they had any questions, to let me know. Their comments were that they wanted a better description of the components and maybe a tour of the project area. I'm working on RFPs. Metering is something we have to work on. Several projects in Arizona have different colors of water."

Shannon said the entity had been meeting for three years plus three meetings. "Be sure to keep me updated on your new members and alternates, with the changes due to the election."

Domenici said he had added to the packet sent to the entity members, a letter about the potential Wild and Scenic Rivers designation. "I've been contacted by Sen. Udall's staff. The next step will be maps showing the segments that would be so designated. Maybe it should be on the next agenda to get an overview on timing and what is involved with it. It has some momentum. There are two ways to do it, through the Department of the Interior or federal legislation. I'm not sure which is being planned at this point."

Lee apologized for a comment he made at a prior meeting that all the work on the project "'may not be worth it.' That is not my true feeling. At a conference I attended in Oklahoma, the speaker was talking on governance and said: 'Words matter.' My true feelings are that every drop of water we can legally keep in New Mexico, we should keep."

Campbell said he would like to bring up an issue. "We had an email when we were talking about the diversion to use AWSA water and adjudicated water. Because every ditch has coveted grandfathered ways to use the water, as an irrigator, I would not want to see these rights that date back to the 1800s taken away. I wouldn't want to impact the diversion. That's why I argued against a fixed crest diversion. It would be a nightmare to withdraw water when we were down to 40 or 50 cfs (cubic feet per second). If we build something that doesn't work for irrigators during the dry season, we may have to make changes. But it might not be in the NEPA analysis and we wouldn't be able to do it."

Gutierrez said he forwarded the comments to the joint leads. "I said we have to recognize the existing irrigation systems. I think they are part of the existing baseline conditions. The impact analysis will be over and above these baseline conditions. We will have to take them into account when we do the design work."

He said he also made an inquiry to Sen. Udall's office on the Wild and Scenic Rivers designation, when he saw it in an action by the Silver City Town Council. "I talked with Melanie (Goodman, Udall's local representative) about it."

Runyan said he had been getting feedback from irrigators and three ditches. "The question about ditches and having management of the ditches was discussed. They are confused by the development of the AWSA water."

Gutierrez said the use of the water has to do with timing. "We are trying to estimate the operations and maintenance costs and the timing through the yield models on when irrigators can take water. We are looking at storing the water in the shoulder months. We will have to have contractual agreements with the users."

"To protect the irrigators and the ditch managers, we would need to lease the ditches, I think," Bays said, "if the diversion would still be owned by the ditch owners."

Hutchinson said a lot of discussion among irrigators has been whether the operations and management costs could be executed between current water users or whether the NM CAP Entity could do the O&M. "We might be able to do a lease agreement where the ditches could do an agreement with the CAP Entity. It needs clearly to be kept in mind on how far we can go in a contract with the users."

"I commend the board for minimizing the project we have. But certain components were saved for environmental review," Runyan said. "I'm not enthused about the five wells in the Upper Gila. When we get the EIS can we reduce the project?"

Gutierrez said the members have always had the ability to reduce the scope of the project.

Runyan said he likes that the board can always reduce the size of the project.

Campbell said, he, as an irrigator, looks at the advantages that a good diversion can provide. "There are advantages with attached problems. I would look to ascertain if we could use paid or volunteer labor and work with co-ownership or lease or whatever is viable for O&M."

Hutchinson said his understanding is that Wild and Scenic is a congressional action. "I would like more detail on the segments being proposed."

The next regular meeting is slated for Dec. 4, but Domenici said he had a conflict. Shannon said she would look at the Grant County calendar to see which day would be better. Monday, Dec. 3, was suggested, but is tentative.