[Editor's Note: This is part 2 of a multi-part series on the Dec. 3, 2018 NM CAP Entity meeting.]

By Mary Alice Murphy

The next topic of discussion was a draft to make the New Mexico CAP Entity a political subdivision. A draft was presented that was modeled after the Eastern New Mexico Water Authority. NM CAP Entity Counsel Pete Domenici Jr. said he received a request to provide written comments. "Most of my comments are not particularly substantive," he said. "They mostly addressed the difference between the Eastern New Mexico Water Authority and the New Mexico Central Arizona Project Entity. There are structural differences between the entities. I left the draft with the ISC and requested a follow up meeting, and then a proposal to bring it back to the board for approval."

Howard Hutchinson, representing the San Francisco Soil and Water Conservation District and who created the draft, said he was hoping to get the request pre-filed. He suggested talking to the drafter of a bill to address the changes made between the CAP Entity and the ISC. "If we can meet with the ISC during December, we could consider approval at the January meeting. Then we could go forward with filing it with the Legislature."

"I want to highlight that the new entity, when it is approved, would continue with what we're doing now to develop the Arizona Water Settlements Act water," Domenici said. "In addition, like Eastern, we could absorb other entities and could become a regional water authority. What we're doing now would carry over."

If the CAP Entity acquires the political subdivision status, it could have authority over non-AWSA water entities but only if the entities came to the authority and wanted to join its assets with those of the authority's. "If we put it in the statute, we can do it," Domenici said.

Hutchinson said one of the things the Legislature has been doing is encouraging regionalization of water authorities and water usages. "I think it should be included."

Domenici note that in New Mexico it has happened case by case. "It's how other water authorities are doing it. We have to create our own statute."

Alex Thal, the alternative for the Grant Soil and Water Conservation District said the agency he represents would support the authority, "especially after seeing the regional water planning process, which has been kind of ad hoc. I would like Mr. Domenici's advice on creating an authority beyond AWSA water." He also noted that at the state level, beneficial use doesn't include environmental use. He suggested making it more like in Arizona, where environmental uses can be beneficial use."

Domenici said another issues that differentiates the Eastern New Mexico Water Authority from the proposed NM CAP Authority is that in the Eastern one, most of the entities are counties and municipalities. "We are unique. We have options for entities to come and join, including acequias."

Allen Campbell, representing the Gila Hot Springs Irrigation Association, said the people who joined the NM CAP Entity JPA did so with the hope of acquiring more water "to our advantage. I joined because I thought ag was the best venue to use it immediately. It can be moved from ag to other uses. I would not want to dilute the board with those with political ideas. Be careful how you word the statute."

"We would have to set criteria for new members," Domenici said.

Chairwoman Darr Shannon, representing Hidalgo Soil and Water Conservation District, asked if the group became a political subdivision, "would we have to change the JPA?"

Domenici said: "We would phase out the JPA and become a political subdivision."

Executive Director Anthony Gutierrez noted than any bonding capacity the authority would have would be revenue bonds. "We would need taxing authority. I didn't read such language in the proposal."

Joe Runyan, representing the Gila Farm Ditch said: "Those of us who represent acequias, would this modify our rights?"

"As I see it, your assets would not be part of the authority," Domenici said.

"The Gila is fully adjudicated," Runyan pointed out.

Domenici mentioned that the Eastern New Mexico and the Bernalillo authorities are for cities and municipalities. "We could broaden the list of entities in the authority or keep it limited."

Hutchinson said the primary purpose of the CAP Entity is the acquisition and distribution of the AWSA water. "Additional benefits to becoming a political subdivision includes better access to state or federal funding. I have no anticipation of taking over other entities unless they wanted to join."

Hutchinson said he wanted to make it clear that no one would be part of the authority unless the entity specifically asked to be part. "I do agree on flexibility with the use of 'may.'"

Alex Thal, alternate for the Grant Soil and Water Conservation District, said he was against any expansion mixing AWSA and water managed by state statue. "I don't want mission creep."

Campbell said his concern was that he believed that if the subdivision is not settled on being for AWSA water that there would be room for people to join and be obstructionists with their philosophy. "I don't want to dilute what we're doing. I think we need restrictions. "

Allred said he hears the caution on sovereign water rights. "A lot of our acequias suffer for not being political subdivisions. I am seeing it in Catron County. Things could be changed with political subdivision designation. On one side, I agree with Thal. And I agree with Campbell on the sovereign water rights, but I encourage everyone to listen and educate themselves."

Thal said he thinks a problem is a need for more representatives of water associations. "Right now, we should be a political subdivision to protect our water and focus on the 10,000 acre-feet for the three counties and the total 14,000 acre-feet, including the San Francisco."

Hutchinson said he believes that the bill could be tailored to AWSA water "now. In the future, we could extend it and amend the statute. I have the tendency to agree we should focus at this point on AWSA water. It would make it simpler for drafting. I doubt it will be enacted this session. It usually takes several sessions."

"I know the focus is on AWSA water," Vance Lee, representing Hidalgo County, said, "but we're talking about revising the JPA to include other water. We are negotiating with Freeport-McMoRan and others. I see a problem if we don't include others."

Runyan agreed it should be inclusive. "Right now, once we get the New Mexico Unit done, we need to look at the watershed. We could get 20 percent to 30 percent more from watershed restoration. I think we would benefit from inclusion."

Gutierrez pointed out that if the bill focuses on AWSA water, it would prevent the purchase of water rights. "I'm seeing the possibility of purchasing water rights and retiring them, so they are not used." He said he got a comment from a legislator about water recharge in the Mimbres. "Maybe Freeport will want to retire water rights. I think we should leave it more open."

Campbell said he looked at the JPA. "Freeport is still linked to the AWSA through the JPA. I am adamant that we are treading on dangerous ground. Some will want to join and be detrimental to our purposes."

Shannon said the bill to form a political subdivision needed to get done.

Thal said he believes it should be linked to AWSA water. "Maybe we can have some language to limit it to AWSA water and stay on focus."

Dave McSherry, representing the city of Deming, said it was easy to agree with both sides. "But I don't want to suffer mission creep. If we look at it from the other side, maybe expansion would lead to other options for the water. One way may benefit Deming. If we become a political subdivision, we may see it as a positive."

Runyan asked if the NM CAP Entity doesn't want to bring on another entity, "can it say no?"

Domenici said the political subdivison could have limitations, but, if, for instance, Silver City asked to come on, it could. If an entity was in the classifications, the subdivision could accept it. If they were already a political subdivision or a massive water user for example. "If we keep that understanding, some that might want to potentially be a part of it, wouldn't qualify. If we want to reconcile it, we would keep the same type of entities. My view is that we could sell them bulk water through our pipelines. But I'm not sure we would want to run wastewater-treatment plants. This model we are basing our bill on has water and wastewater facilities. I think we have a different vision. Some of ours are way broader, such as Freeport and the watershed."

Campbell said he was not objecting to the idea of "what we are pursuing. We are at the point of identifying what we are more comfortable with. We have to hash it out."

Shannon suggested counsel meet with the ISC, "go over this and have something ready to vote on in January. Get your comments to Domenici as soon as possible."

"I would defer to Hutchinson," Thal said. "He represented my concerns."

Hutchinson moved to table the issue to the next meeting.

Shannon said the revised draft would be sent to the members. "Please reread it and be ready to address it at the January meeting.

The next article will continue a discussion from the prior meeting on rescinding or amending a previous motion.