[Editor's Note: This is part 1 of a two-part series of articles on the New Mexico CAP Entity meeting held on Feb. 5, 2019.]

By Mary Alice Murphy

After the roll call and recognition of those on the telephone, as well as the approval of the agenda and minutes, public input was heard at the New Mexico Central Arizona Project Entity regular meeting on Tuesday, Feb. 5, 2019.

Carol Martin said she had questions and comments on the website for the entity.

"What is a fixed cross-vane weir structure?" Martin asked. "What is it and where to we find out how it works? Also, it says Pond 2 in Winn Canyon is to be expanded because Pond 5 is being reduced and Pond 6 eliminated. I think that's correct. I'm also wondering if the data is showing monthly input and output. How much will Winn Canyon be expanded. Right now, I think storage is estimated to be 1,600 acre-feet. Do you have a newer map available? Have the property owners been contacted?"

Vance Lee, representing Hidalgo County, suggested that Martin get in touch with NM CAP Entity Executive Director Anthony Gutierrez for answers.

"I don't feel the website is up-to-date," Martin said.

Richard Martin said his interest in commenting was selfish. "One of our wells went dry. When I or our heirs decide to sell, where can we buy water? In reviewing the documents, I don't see where property will be bought for a unit, but just leased. I would like to find a place to drive down and buy water to take back to my property. I would like to see if a body bought water so we could put in a straw and pull water. Why don't we buy some property for the property owners to utilize the water? I haven't seen anything that will benefit residents. I see a lot of digital debris."

NM CAP Entity Chairwoman Darr Shannon said until the entity has completed the NEPA process and received the environmental impact statement, "we can't jump to buying property."

"What you would use would be household water," NM CAP Entity Counsel Pete Domenici Jr. said. "Water from the river will need to be treated."

Mary Burton Riseley said she came to the meeting that day because "I think one of the gravest threats is the demonizing of some people. I respect you and your devotion to this project, even though I hope this project will lay down. But I wanted to thank you for your work."

Ron Troy said he was glad to see an update of costs on the agenda. "I hope it's an accurate picture of the costs. I believe the ones working on it have grossly underestimated the costs and have never taken into consideration the costs of mitigation, litigation, the screening of fish at the diversion and the ponds. I hope you are thinking about all the costs you will burden the taxpayers with, when a lot of groups are going to be suing you. I asked (Bureau of Reclamation Engineer) Jeff (Riley) to comment on the costs of other projects around the West. I would love to see an accurate cost/benefit analysis because right now I don't think we have any idea what the costs look like."

The next item on the agenda was a presentation by Mark Allison, executive director of New Mexico Wild, on the proposal to designate 450 miles of Gila and San Francisco rivers as wild and scenic and how the designation would affect the current Arizona Water Settlements Act diversion project.

"I respect that the CAP Entity is an important stakeholder," Allison said. "The challenge is how to best balance human uses and long-term stewardship. We want the designation bill to be as strong as possible."

He noted the Wild and Scenic Rivers Act passed in 1968 to protect wild rivers that are unique to America. 1968 was during the dam-building era. The act was to balance the dams with the highest form of river protection for outstanding scenery and recreation to preserve the free-flowing nature of the rivers and to preserve their unique values. It would give the public the opportunity to engage in the long term planning on what was the best way to manage the rivers for their free-flowing characteristics, their special values and their water quality. It encouraged collaboration for the best way to preserve and manage activities important to the community. The act would restrict dams and other activities that would harm the free-flowing nature and their special values.

Allison said there were two ways to designate a river. The first and most common is for Congress to pass the designation and the president sign it. The second and less common way is for the governor of a state to request the designation by the Secretary of the Interior.

Rivers can be designated in three different classifications: 1) as wild with no development and primitive trail access; 2) scenic, without shoreline development and easier access; and recreational, with ready access and may have some development.

At present, 3,200 segments of 280 rivers are protected by the act. That is one-quarter of one percent of the river miles. 17 percent of rivers have some sort of development such as dams.

In New Mexico, there are four designated segments – the Rio Grande in Taos County, one of the first segments protected in 1968, and subsequently parts of the Pecos, the Rio Chama and the East Fork of the Jemez River.

"The Gila River is the finest natural river in New Mexico," Allison said. "It has the largest network in the Southwest. It has continentally distinctive fishes and birds, as well as cultural and historical significance."

Nathan Newcomer, the area representative for New Mexico Wild, said the interest in the Gila dates back to the 1970s. "This current push started about five years ago with a proposal by citizens, to protect the scenery, geology, wildlife, birds, fishes and cultural values. It asks for 450 miles of designation, with about one-half being tributaries. All the segments flow through public lands, with none on private land. They are on Forest Service and Bureau of Land Management property, such as the Upper Box, the Middle Box and the birding area on the Gila. Three segments have been identified on the San Francisco, including the Frisco Box, Devil's Park and the Lower San Francisco Canyon south of Pleasanton."

He said the requested designation on the San Francisco was to protect its current values, including hunting, fishing, camping and other activities. Allison said keeping the river healthy benefits the local economy with outdoor recreation, which brings $10 billion into New Mexico and employs 99,000. He said there would be a requirement to enhance the river. The act encourages public-private partnerships.

"This proposal enjoys the support of businesses, the Green Chamber of Commerce, 35 faith-based organizations, dozens of conservation organizations, Silver City, Bayard and the Copper Country Senior Olympics," Allison said.

For specific river values, each segment has its own plan and restoration and enhancement may be a part of the plan. A comprehensive river management plan is to improve the ecological function of the segments. Communities of interest develop the key components and help with data collection and monitoring.

"We believe what we have proposed does not directly affect the AWSA project," Allison said. "The Cliff-Gila unit, including Turkey Creek and Mineral Creek, none conflict with the New Mexico Unit. Mogollon Creek may affect it. In the San Francisco, some segments are north of Alma."

Gutierrez asked about the Sunset Project near Virden, which lies on BLM land. "How would the wild and scenic designation affect this project? It should be right outside your map."

Lee asked how far outside it would be and Newcomer said he would have to get back to him on that.

Ty Bays, representing the Grant Soil and Water Conservation District said: 'If we build the diversion, we expect people would sue because it might affect those farther downstream. Cen you say you will not sue?"

Allison said he could not commit to no one ever suing. "Litigation is rare. The designation does not affect water rights. Ours would be junior to yours. There are ways to put things in the legislation to protect you."

"Would this designation help the fish and endangered species?" Bays asked. "Much of the Gila River is in the Gila Wilderness Are there other areas of critical environmental concern?"

Allison said it is common to have wild and scenic designation in wilderness areas. It is also common to have water projects upstream and downstream from wild and scenic segments. "We will be working with stakeholders to bring enhancement to the rivers. One of the benefits is for wildlife and fisheries."

Bays asked why the fish and birds that are being evaluated "seem to be thriving on primarily private lands. We see declines of them on federal land. Why are they thriving where you say the threats are? Why will this plan help them?"

"The WSRA was designed to be long-lasting," Allison said. "With climate warming, we can't predict what will happen to specific species."

Bays said he loved the photos of the people swimming in the river. "All these places are now wilderness, birding areas and are now basically off limits to recreation. They cut people off from the river."

Allison said WSRA does not limit public access. "It's not just for birds and wildlife; it also enhances traditional uses."

Allen Campbell, representing the Gila Hotsprings Ditch Association, said he had so many questions. "Within the Gila Wilderness, any manipulation is prohibited. The reason you can have wild and scenic is because the habitat around the river is already protected. Back to the Apaches, they were tough neighbors. We can thank them for keeping the riffraff out. Why the redundancy and interest in the river, which is already in the Wilderness, which trumps anything you can do? I live along the river. We have four designated Forest Service campgrounds and two designated private campgrounds. Mine had 15,000 visitors last year. That's an economic benefit. The ecology of the river remains as it is because most of it belong to Arizona and we can't access it. It's a healthy river protected by wilderness. The flood regime is part of the natural river. Our purpose here is to try to harvest water in the most advantageously environmental way. In fact, if this program goes forward and we have success, I hope we will have some small flood control dams to scalp the top of the floods. My last question is who pays your salaries?"

Allison said he is paid by the New Mexico Wilderness Alliance, also known as New Mexico Wild. To a question from Campbell if any of the salaries used federal money, Allison replied that about 11 percent is paid by the Forest Service. "We have wilderness rangers. We are membership-based with about 51 percent coming from dues and donations."

Campbell said it seemed to him that the wild and scenic designation is redundant. "Could this money be used more efficiently elsewhere?"

"I appreciate your recognition of the overlapping of designations," Allison said. "Our proposal includes segments in the wilderness and outside the wilderness. In the recreational areas, the camping community could be part of the proposal."

Van "Bucky" Allred, representing Catron County, asked if it would be possible to get more scientific maps. "I would question whether some of these segments are on private property. I would be concerned about cattle producers. I hear free-flowing all the time. Do you realize how many diversions are on these rivers?"

"We do not believe that any segments are on private property," Allison said.

Allred invited Allison to speak to Catron County government. "When we started this CAP Entity, we looked at how many acequias we had in Catron County. There are about 70. We do have wilderness, but there are private lands within it with water rights. I invite you to come see us with better maps, and please provide them to Mr. Gutierrez, too. You are impacting our revenues. I'm a huge proponent of the Gila trout preservation, so my grandchildren can fish for them. When you come in and propose restrictions, you should talk to us about this."

John Sweetser, representing Luna County, said the Mimbres River is in the county. "What would the WSRA protect that is not already protected?"

"We recognize and focus on the special values of each segment," Allison said. "We want to protect and enhance the rivers with the possibility of collaboration. The wild and scenic designations do not affect grazing or permittees. If an action is seen as harmful, it would be addressed in the management plan."

Sweetser said: "It always starts out that way and then changes."

"We have 50 years of history," Allison said.

Bays said he didn't think it would affect cattle grazing, because there are no cattle allowed on the Gila. "The only flycatchers on the Gila are in administrative areas. There are no flycatchers where there are no cattle. Water rights are already settled. How would you get additional water rights?"

"I'm not a wildlife biologist or a water lawyer," Allison said. "The water rights could be considered to protect the free-flowing river. They would be junior to any other water rights. In most instances, water rights are not asserted. I can get you more information."

"Over the past 15 years, I have heard the term free-flowing," Lee said. "What is your definition?"

Allison said he anticipated the question. "It's in the act." He quoted from the act saying that free-flowing means existing and flowing in a natural state without impoundment, diversion, straightening, riprapping or other modification of the waterway.

Lee asked: "So existing diversion dams don't count?"

Allison said minor diversions do not disqualify a river from the designation.

Shannon asked if the New Mexico Wilderness Alliance is a non-profit organization. "Does the membership come from all over the country or just New Mexico?"

Allison said the majority are from New Mexico, plus people from other areas. "We receive 11 percent of our funding from the Forest Service—a cooperative agreement with wilderness rangers – young people early in their career going out on the forest to help the public engage in stewardship activities. 51 percent from membership and donations and the rest of the 30 plus percent from national foundations in the U.S."

"You used the term climate change. I don't care what anyone thinks, it is politically correct and has never been proven," Shannon said. "I think it's a bunch of baloney and an environmental scam that they use to get something done. The Gila is already protected, with no cattle allowed on the river. The climate changes every day, every month, every year. If you think our diversion is going to dry the river, do you think our diversion is going to dry up the river and your designation is going to save it from climate change?"

"I think we are seeing variability in climate," Allison said. "Hopefully the WSRA will protect and make the river flexible. We are trying to create a resilient Gila River for all of us. This is not a direct frontal attack on your diversion. We are trying to separate this."

Shannon asked what his job is for the 11 percent of the Forest Service "paid by all of us?"

Allison said: "None of my salary or Nathan's comes from the Forest Service. That will be clarified when you meet with the Forest Service next month. This is in no way tied to their plan. I know there was confusion there. This is completely different from their ongoing plan revision."

Bays asked if the Forest Service funding was competitive. "Could I apply? Why would the Forest Service needs others to help them?"

Allison said it was competitive for the Forest Service to get seasonal work done. "We had 13,000 hours of volunteer time, not working on the Gila. We did not have an agreement with the Gila National Forest."

Bays asked if the alliance bid on the job.

"Yes, we had a cooperative agreement and had to apply to the Forest Service through Region 3," Allison said. "Each forest had to submit funds to work with us."

Howard Hutchinson, representing the San Francisco Soil and Water Conservation District and attending by telephone, asked: "Are there any proposed designations above the Alma site to the Arizona line?"

Newcomer said two segments were included in the proposed designation—from Iron Bridge to Beaverhead and then in the Frisco Box.

Hutchinson asked if it would impact the Catron diversion above Iron Bridge.

Newcomer replied that he believed the proposed segment is south of Iron Bridge.

"What if these were a proposed diversion above the bridge?" Hutchinson asked.

"If it's in the wild and scenic designated segment and it's a major project, it would not be acceptable," Allison said. "If it were outside, it would have to meet reduced values test. It is not unusual to have projects above and below the segments."

Hutchinson asked if Allison were aware of the litigation history that has resulted in claims of projects adversely impacting flow in designated areas.

"Is this a local issue?" Allison asked. "One of our partners has done extensive studies over the past 50 years and litigation is rare."

Hutchinson asked about existing adjudicated water rights that may detract from a designation.

"I'm not an attorney," Allison said. "Our rights would be junior rights."

"If the river were not in proper ecological function, would wild and scenic allow remediation?" Hutchinson asked.

Allison said the purpose of the act is to protect and enhance rivers designated as wild and scenic. "We would look at it as a restoration effort. It would be a benefit of the designation."

Hutchinson said any permit applications have to go through the Office of the State Engineer. "Are you aware of the public process for any application?"

Allison said he would stipulate that the question was out of his expertise.

Hutchinson said the OSE asks three questions: 1) Would it impair existing adjudicated rights? 2) Would it contribute to the public welfare? and 3) Would it promote the conservation of water?

"In regards to federal land management, would degradation of water quality by the federal land management agent trigger the wild and scenic action?" Hutchinson asked.

Allison said it might if there were an adverse effect on water quality.

"Would the action of a private property owner trigger action?" Hutchinson asked.

Allison said he did not believe that the actions of a private property owner could trigger federal actions. "We could encourage through the management plan, the protection of values."

Hutchinson asked if Allison were aware of litigation when a person wanted to build a home above a wild and scenic segment because it would affect the viewshed. Allison said he was not aware.

"I would submit that these segments, considering the proposed segments noted that in the areas above and below the segments, we have cattle grazing, road maintenance, recreational uses, extraction and potential water development and they would be impacted by a potential wild and scenic designation," Hutchinson said. He read from the statute.

"I submit as a comment that the Bureau of Reclamation is an agency of the U.S.," Hutchinson said. "Reclamation would be prohibited from providing any loans, grants or funding for water development. I think we already have multiple layers of protection. Further layering of protection is not needed."

Domenici asked if at the time of the designation, "we won't know what the comprehensive river management plan would look like, right?"

"It will be a collaborative plan done after the designation," Allison confirmed.

"You said you made changes to this designation as proposed," Domenici said.

Allison said the first proposal considered segments flowing through private property. "Some we supported, but we decided it would be better not to include private property."

Domenici asked if any changes had been made to federal lands, to which Allison said not that he knew of. "If we need to make changes, it would be helpful, so we can make the proposal as strong as possible."

"We are looking at a 100-year horizon," Domenici said. "Perhaps there will be more infrastructure or taking out and replacing infrastructure. We haven't yet developed any water. If we got any rights after your designation, they would be junior to yours. We would not have flexibility. We feel we are mandated by another federal act. Reclamation views may change over time. We don't know the future of the four counties. We want to maintain flexibility. It is not reassuring that your proposal limits our ability to get water. Given the promises of litigation we receive regularly, wild and scenic is just another tool for those who are already planning to sue us. They'll do anything to pursue litigation against this diversion.

"It's not too far a stretch that they are your supporters who are building the tool," Domenici continued. "We can still use this water, whether we build a unit or not. Any designation on the Gila below our project is very dangerous to us. It is unreasonable that we would have to fight it out. It's just an invitation to go to court. How essential are these mainstream designations? These designations are three or four times more than the rest of New Mexico designations combined. We are trying to use the 14,000 acre-feet we are allocated by federal law in the best way possible forever. That is extremely crucial to us. The variables are what people are trying to do above and below the project. I believe the engineer would say the unreasonable diminishment is not easily quantifiable. My concern about the mainstream segments is extreme."

Allison said if Domenici were concerned about the sequencing of the segments and the water rights, "we are hoping to get the proposal presented soon. It sometimes takes years, if the primary obstacle is one that we could negotiate. Some of our supporters here are opposed to the diversion and some are supportive of development and wild and scenic. We think these rivers are deserving of protection. If you want us to provide flexibility forever, we cannot."

"We are not going to negotiate behind closed doors," Domenici said. "Our challenge is that you can't negotiate flexibility. It is extremely difficult to design what we're doing. We are not going to designate more and undermine our statute. I think it is unreasonable to ask us to support something that may eliminate all possible diversions of the future. The goal of the San Francisco is to get its full allocation of 4,000 acre-feet. Putting parts as wild and scenic would prevent that. All of us here are concerned about water 50 years from now, for potential municipal and industrial applications."

Allison said he and Newcomer did not attend the meeting to ask support from the entity. "We heard your concerns and we appreciate the opportunity to be here. Some of the questions we couldn't answer; if you submit them in writing, we will be happy to get answers for you. We came here to give you information."

"I think everyone appreciated your coming," Domenici said.

Shannon asked if Allison and Newcomer support what the CAP Entity is doing.

"No," Allison said. "We're really concerned about it. We do not support what you are doing."

"You are not supportive of the entity trying to salvage water for the benefit of the whole community and the future of southwest New Mexico," Shannon said.

Allison said they were trying to compartmentalize the opposition to the diversion from the wild and scenic designation. "We think some local water projects would be a better use of your funding."

Shannon noted that Allison had said his proposal would not impact the entity's project.

"We are contending that the designation does not affect your project," Allison said.

Campbell asked if Allison had done any history of the Gila.

Allison said he was aware that they were not the first to try to get wild and scenic designations put in place. "We understand there were big projects proposed."

"I don't mean the political history, but the actual history" Campbell said. "The AWSA water is part of history including our diversion. It is a program to go ahead with developing AWSA water. We are developing something and that history would include that 14 years ago, we started looking at this."

Allison said he was generally aware of the AWSA.

"Are you aware of the 75 years of Gila River history?" Campbell asked. "You need to give that due diligence as well as you give due diligence to the current diversions."

Gutierrez said he was going to offer to organize the concerns. "We have staff on the phone and in the audience from senators. I would like to compile our concerns. I ask all members to email me your concerns. I think there are some things in the legislation that could address our concerns."

Shannon said she has a feeling that what is being done is trying to get rid of the New Mexico CAP Entity.

Allison said the entity had been generous with its time.

The next article will begin with old business and complete the meeting.