By Mary Alice Murphy

The New Mexico Central Arizona Project Entity held its regular meeting on June 4, 2019 to address old and new business, including a potential response to a letter received from the U.S. Bureau of Reclamation Phoenix Office.

In public comment, Chris Overlock, representing himself, said he keeps tabs on the U.S.G.S. Gila Gauge Gila River water levels. "Right now, it's showing 42.2 cfs (cubic feet per second). That's about 84 acre-feet per day. It’s a humongous project you're proposing. Taking water out in June will affect the downstream levels. I'm sure you've thought of all this. I take exception to the swipes at the environmentalists. We all want to save the river for its outdoor potential, as much as anything else. Certainly, no environmentalists are getting rich off of this. I have family roots of raising cattle in southeast Arizona, but things change. It's time to pull the plug on this project."

The first item of old business was to readdress the fiscal year 2020 budget.

NM CAP Entity Executive Director Anthony Gutierrez said although the board had approved the budget at the last meeting, it was brought to his attention that "even though the Legislature approved a flat operating budget for the ISC and us, the ISC had made some adjustments. Some funding was added to our budget. I added funding to professional services to match the adjustments made by ISC. I also added some new contractual services."

Ty Bays, representing the Grant Soil and Water Conservation District, asked what the contractual services would be.

Gutierrez said some of it was to provide extra attorney fees and if engineering needed to provide additional information. "We have different line items in our budget. We had moved $5,000 out of a line item, which I have put back in, because we don't know exactly how much we will spend."

Vance Lee, representing Hidalgo County, said he would have liked to see some extra put into the full-time position of the executive director.

The revised budget was approved for $791,800.

The next item of old business was to provide authorization to prepare a response to be acted on at the July 2, 2019 meeting regarding the May 31, 2019 letter from Leslie Meyers, area manager of the U.S. Bureau of Reclamation Phoenix office.

Gutierrez said the letter was received directly to the NM CAP Entity from Reclamation. "I believe it was an attempt to clarify issues brought up by the board. I don't necessarily agree with all the comments from the board nor some of the aspects of this letter. The process with the BoR and the Interstate Stream commission has been difficult, with regards to the technical process. We have been trying to provide information based on a robust and extensive NEPA and evaluation for the proposed action."

He said the letter laid out timelines and maybe "in some respects it points the finger at the NM CAP Entity. I would like to add that a lot of it should be pointed at the engineers at the beginning of this process. Reclamation felt it had insufficient information, but felt it had to start the process to meet the deadline. We agreed, but we knew it would take a lot of effort to provide the information. The timeline was at times unrealistic. We were trying to meet the schedule to meet the Dec. 2019 deadline. We were trying to clarify and fill data gaps that may have created more questions. This is pretty common. It potentially takes three years to do a good EIS. Another thing that happened was the Secretarial order from the Department of the Interior to expedite the NEPA in a decreased amount of time. We were unable to agree with landowners where to put the diversion. A landowner said he could provide a comprehensive design. There was a lot of give and take. There are a lot of things that are not in this letter. While this does provide information and deadline, it doesn't reflect all the work going on. We've had a good working relationship with Reclamation and that will continue. We want to find a positive way to respond with our vision of moving forward with the EIS. I recommend approval to send a response. We have a couple of representatives from Reclamation in the audience. We will consult with them on some of the language in the letter to make sure we are sending a positive response. We still have the overarching goal to complete the EIS. I will work diligently with (NM CAP Entity Attorney) Pete Domenici in preparing this response."

Joe Runyan, representing the Gila Farm Ditch Association, asked: "Am I correct in saying that we want to work with the Bureau of Reclamation and we want to go to the Secretary of the Interior for a deadline extension. Am I correct? It looks like a no-brainer."

[Editor's Note: The Arizona Water Settlements Act states: "If New Mexico exercises all reasonable efforts to obtain the issuance of such Record of Decision, but the Secretary is not able to issue such Record of Decision by December 31, 2019, for reasons outside the control of the State of New Mexico, the Secretary may extend the deadline for a reasonable period of time, not to extend beyond December 31, 2030."]
Gutierrez agreed with Runyan. "I certainly do feel that we had a pretty good-sized bump in the road."

He said he had a lengthy conversation with Meyers and "she feels the same way."

Runyan suggested rather than a letter response, perhaps a tête-a-tête with Gutierrez, Domenici and Reclamation might be in order.

"The letter was responding to comments from this board asking for answers on why there were delays," Gutierrez said. "We need to make clear the reaction from this board."

Lee said he agreed basically with everything Gutierrez had said. "I would like to see you work with Mr. Domenici on the response."

Gutierrez said he would have the board members review the letter and approve it at the July meeting, before it was sent.

Howard Hutchinson, representing the San Francisco Soil and Water Conservation District, said he didn't intend to withdraw his objections of the characterization of failures of the board. "There are a lot of excuses why we're in a delay pattern. There is no admission in the letter from Reclamation that some of the delays might have been their fault, too. I'm not saying it was the fault of the board, of the engineers, or anyone. We have seen some changes, but the changes don't take away from the fact we intend to withdraw and store 10,000 acre-feet of water during peak flows on the Gila River and 4,000 acre-feet on the San Francisco River. The reason to create storage is to mitigate the low to non-existent flows of early summer. That is the foundation of the analysis of what impacts diversions will create. The footprints of the units require analysis as well. We have seen minor changes to cut back costs, but not on the proposed action, knowing that in the future we may have additional projects. The footprints and information for them have exceeded the 30 percent design required. We're jumping into the weeds for the elements of diversion. We haven't changed the amount of water to withdraw."

He continued and said those on the San Francisco has disagreements and "it necessitated us to come forward with an alternative. That alternative reduced the size of the footprint but diverts the same amount of water. As a cooperating agency, we had the chance to review the preliminary internal draft. It seems to meet that the contractor took extreme liberties in creating alternatives that to me are totally not feasible. Yes, our response should be positive, and obviously, we need to request an extension of the deadline for the Record of Decision from the Secretary. As the internal documents come out, as a cooperating agency, the San Francisco SWCD is certainly hopeful for massive changes. I will provide input on the document. I will especially examine the baseline information that gets presented."

Allen Campbell, representing the Gila Hot Springs Ditch Association, said: "We are not subjects of Reclamation. We are in partnership with them. I don't think our earlier comments were in error. It was just a disagreement that it is important to tamp down. We want to get everybody back in good discussion mode."

Jim Massengill, representing the city of Deming said: "I think I'm on the same page. If such a letter came to me at Public Words, my initial response would be to respond. Thinking about it, I probably wouldn't respond. I think we should look at expediting the EIS. I am inclined not to take time to respond."

Campbell said he believed there should be a polite response. "Let's be the adult in the room."

Van "Bucky" Allred, representing Catron County, said he had heard good remarks. "I like the the remarks to move forward in the process. If we make Reclamation and ISC a little uncomfortable and then move ahead, that's good."

Domenici said he had comments for the benefit of the board. "My perspective is that I want to thank all the people of the Phoenix Office of Reclamation. They have been very good for me to deal with. I also appreciate that our board members have responsibilities to their constituents. I didn't feel the board comments should be unacceptable to the BoR. On March 14, they say the NEPA is on schedule, on March 15, they tell (Chairwoman) Darr (Shannon) that there will be a significant delay, and they will need an extension. They sent a letter the end of March with some details. Then, for our special meeting on April 15, less than two weeks later, we find out they are six months behind schedule, a significant delay. Under those circumstances, for the board members to ask what caused the delays was not unreasonable. Why weren't we notified of the delays? It was on schedule on March 14 and on March 15, it was six months behind schedule? Why was there not communication on the delay? The last schedule we had received was from August 2018, extremely detailed. It showed the Record of Decision should be done by Nov. 22, 2019. In August of last year, we were on schedule. They didn't come up with anything about a delay in time for us to do anything. I'm very disappointed. I don't think the March 28 letter contradicts anything I've said. We want contemporaneous communication about a delay, not after the fact. I don't particularly think this type of letter is common, and I don't think it's appropriate. NEPA is done behind a shield of confidentiality. We don't know what was happening in real time. I don't think the letter of March 28, 2019 is correct. The board had questions that needed to be addressed, but it is probably confidential until the EIS is released. I think Reclamation wants to work with us."

He said the letter specifically talks about an extension, which can go for up to 11 years. He also discussed the Consumptive Use Forbearance Agreement, a part of the AWSA that stipulates when New Mexico is allowed to take AWSA water out of the Gila and San Francisco rivers. "New Mexico means working with the ISC. The CAP Entity is not New Mexico nor the state of New Mexico. In my view, this letter should not affect an extension. It does not involve the CAP Entity. The higher level of analysis is whether New Mexico has taken reasonable efforts to move forward. I think the shorter the response to this letter, the better. "

The board members approved creating a response and taking action on it at the July 2 meeting.

In new business, Gutierrez said the SF-299 applications would provide for a facility on federal lands.

"This is an example of what we were discussing with the Bureau of Reclamation," he said. "The bureau asked us to submit this application, a special use permit, to have on file with the EIS. I got insight from the Forest Service on what is required."

The board members approved filing the form and authorizing the executive director to sign it.

Hutchinson said: "On one of our field trips to the San Francisco diversion areas, we had a conversation with the Forest Service and Reclamation to transfer a piece of land from the Forest Service to Reclamation. It would be one of the most advantageous actions to the project. In accordance with history, it could possibly be later transferred to the NM CAP Entity. I would like to see this advanced. The Forest Service would be required to do an analysis on the piece of property for an EIS."

Lee asked if any other locations were involved. Gutierrez said one in the vicinity of Weedy Canyon in Catron County and another near the Fort West Ditch near the diversion. "They will require two separate applications."

During the executive director report and member Roundtable, Gutierrez said he met with the New Mexico governor's office chief of staff. "We were able to provide information that they had questions on. They had been given information not necessarily in line with the CAP Entity's view of ecologic and economic benefits of a diversion, as well as mitigation of impacts. We walked away with requests. They want a copy of the draft business plan, and they want us to keep them informed of any actions."

Gutierrez also met with Kyle Weaver, the assistant deputy secretary of the U.S. Secretary of the Interior's Office. "We discussed the infrastructure and what we want to do. We talked about the importance of this water for New Mexico. There are, of course, opponents to this project. The infrastructure is solely based on private lands. It would not affect the public usage of public lands. The unit is designed to be friendly to wildlife and fishes and trying to get it to where it doesn't majorly impact river function. We talked about how the state is reacting to the project and about the representation of the board. We emphasized that, as Mr. Lee says: 'It's about the water.' And that this water has been a long time coming to New Mexico. We left with one question for Mr. Weaver and that is the protocol for the secretary's office for an extension. We have not yet had a response."

He said he has made a lot of phone calls to representatives of Reclamation, the ISC, and to board members on how to get the path moving forward. "I'll be working on the applications and on a response. We are also working on moving the business plan forward.

"We have a monthly meeting with Reclamation and the ISC," Gutierrez said. "They reported they are working on hydrological and yield analysis and moving into consultation with the other cooperating agencies. We didn't discuss the schedule for a draft EIS for public review. I've worked with Mr. Maxwell on how the business plan will fit into the EIS. There was a change from the NEPA contractor on the yield analysis. We're trying to work that into the business plan."

Lee asked when the members might see a draft of the business plan. Gutierrez said he hoped by the next meeting. "When we reviewed the yield analysis, we had questions on the assumptions, but we can't know that until we see the draft EIS."

Dave Maxwell, engineer with Stantec, said there were a lot of questions on the yield model. "It's different from the numbers by AECOM. It affects the viability of the project. I would like to sort them out and get answers before the business plan is completed. If we can get them resolved within a couple of weeks, we can finalize the business plan by the next meeting."

"I would like to summarize my response to criticism from public comments," Runyan said. "I think the board has done a great job to minimalize the project. On a practical basis, I live on the Gila. We have Cats moving across the river creating berms and trying to get flows into our ditches. The new structure will be a lower profile than the three gravel berms we are currently using on the river to get our flows. And it will be much more sensible because it will allow for instream flow. Over 50 years amortizing that thing will be much cheaper than ditch users using heavy equipment to maintain our diversions. I want to emphasize, 1,200 acre-feet of water is already being pumped out of the Gila by Silver City, but no one in Silver City is saying they want to forego their fruit trees. We have to use the water wisely. And lastly, in my view, it would be totally irresponsible for us to vacate our ability to negotiate with the other users in the Colorado River to take our water. If we let it go across the border, where it will be sucked up immediately, it will deny us any ability to control our destiny with water for the future. That's my summary of why this diversion is so important."

Shannon said: "I think that last point you brought up is extremely important. For many, many years, Arizona has capitalized that water with a lot of revenue. Now it's our turn to get the water for ourselves that was destined to be our water many years ago. We are working on it and instead of letting all that water go into Arizona where it's making those people wealthy, now it's our turn to get it and use is for ourselves."

Campbell said he had an observation on what the gentleman said about the current flow of the Gila River. "That should be a wakeup call to the members of the board. We're not getting our message across. The river at this point is not running enough water to meet adjudicated rights within New Mexico. This time of year, we're short on water. We can't take all the water we farmers need. By the CUFA, we are not allowed, under any conditions, to take AWSA water under 350 cfs, and then we have a further requirement because of downstream calls. His point is not valid. We will not take water during low flows. The reason why we're doing this exercise is all about taking water at high flows. I hear this. It's not disinformation; it's total lack of information."

Hutchinson said: "I mentioned at past meetings, that the biological assessments have to be done. If there were deficits, there would be a conversation with Fish and Wildlife Services. Anthony, have you been a part of that conversation?"

Gutierrez said he was invited to the first meeting, but not since then. "My understanding is the Bureau of Reclamation is meeting with Fish and Wildlife."

Hutchinson said the government shutdown caused a lot of agencies not to participate in the EIS during that period of time. "I think that should be part of the discussion on an extension. We approved revised BoR revised biannual plan and the schedule. Has the ISC acted on our approval?"

Marcos Mendiola, representing the ISC as a non-voting member, said the ISC had removed the item from its last meeting agenda because it hadn't been noticed properly and would be addressed at the June meeting.

Hutchinson said, in reference to the business plan that he didn't consider what they had received as a preliminary business plan but realizes that it is parallel to the discussion with Reclamation on the EIS.

He said that he was watching the news and a quick blip came up that Levi & Company has realized that fiber from hemp is viable and is superior to cotton and will be producing clothing from hemp. "I would hope that hemp is part of the agricultural products. Our area is suited to hemp production. It is water efficient. We could see a significant benefit. I have heard that it can bring up to $40,000 per acre for fiber and CBD oil. We should be including those high value crops in the plan. I'm looking at greenhousing. Greenhouse production can also be added to the list of viable crops. We should be looking at these options for efficiencies in agriculture."

Campbell said his neighbor on the XSX Ranch is going into hemp. "It's trendy but could be considered. There is a lot to be done in farming. The issue that killed a greenhouse we thought about was cheap tomatoes from Mexico. It shows people are thinking."

Massengill said, given the length of the letter of May 31, "I would like to see a written bulleted response on the activities that are happening."

Hutchinson said Gutierrez was producing a nice summary of the schedule. "I would ask him to reinstate that in his report."

The next regular meeting is set for Tuesday, July 2, 2019 at 10 a.m. at the Grant County Administration Center.

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