By Mary Alice Murphy

The New Mexico Central Arizona Project Entity members, as laid out in the Arizona Water Settlements Act, recently signed a joint powers agreement forming the entity.

The second meeting of the group, held on Tuesday, Sept. 1, at the Grant County Administration Center, had an ambitious agenda to address, including discussion and/or approval of bylaws, a second fiscal agent, a budget, the use of Community Access Television of Silver City to record the meetings, an executive director, and the New Mexico Unit Agreement. Also on the agenda, for discussion only, were possible financing options.

The first item on the agenda was public comment, which was limited to three minutes per person. Allyson Siwik, Gila Conservation Coalition executive director, said many of those attending the meeting had attended the previous day's Interim Legislative Water and Natural Resources Committee meeting at Western New Mexico University.

"They spent most of the day talking about the AWSA and the CAP Entity," she said. "There is still a lot unknown. Who's the water for? Who's going to pay for it? And how much water is there? The public would like to hear more about the project that as Craig Roepke (ISC project manager) said 'could be radically different.' I was struck by the similarity to the subprime crisis of 2008, with people investing in uncertainties. I think we are being asked to invest in a project we know nothing about. I caution you."

Andy Payne, Grant County resident, said the three minutes were too short to talk about what he thinks is a fatally flawed plan from the standpoint of construction, environment, the economy and ethically. "If you continue to burn through the money, you will have used all the money. I recommend that all of you should withdraw from the JPA to free up the money to spend on projects that are ready to go."

Ron Shoup, a new resident, said: "It gives me great pleasure to think of keeping the water from going to Arizona so they can't drive black cars and have green grass in Phoenix and Scottsdale. I'm interested in who is going to use the water. I'm curious because (Norm) Gaume yesterday said 75 percent of the water rights in the valley belong to the mine."

Terry Timme of the Southwest New Mexico Audubon Society said he had an alternative suggestion. "Many wanted to join the CAP Entity to have a seat at the table. Well, you have one. Modify the JPA, so you can use the $66 million for non-diversion projects."

Sara Boyette also of the Audubon Society said she also looks at the issue on a deeper level as an historian of the American West. "I'll be brief and blunt. If you have your mind around a project and think the folks in Deming and Luna County are going to underwrite, you're wrong. Phase 1 would benefit a small group of agricultural people who can't afford the water. You're asking Deming and Luna County to underwrite what they won't benefit from for many years. As a historian, I hear people say: 'If we'd only done this,' and in the present, we say, 'we hope we don't look back and gosh, we had the chance.' Frankly, the odds are so small, it is more likely we will look back and say: 'we could have used the money for projects.' Don't put all the eggs in a basket that won't hold water."

Joanna Allen of the Gila Wild Defense Fund said on the amount of water, which was in discussion the day before: "I heard obfuscations about 'not being able to tell you.' The amount of divertible water is not in question. It is the amount of water allowed by the CUFA (Consumptive Use and Forbearance Agreement). It is not amendable. A decade or so ago, $600,000 was spent on a model by Sandia labs. When it came back, it showed very little divertible water. The spreadsheet and data showed that. There has been very little divertible water for many years."

Janet Wallet-Ortiz quoted from quotes. "'Grievous problems,' 'a huge waste of money,' ' no workable plan.' I see you at the table shooting in the wind. There is no use in spending money on an undefined project. I agree with Terry. Use the money on projects that can be done now. Money is being spent. Silver City is given $2 million for a regional water distribution project. Where will the other $9 million come from?"

Doug Wolfe, Center for Biological Diversity attorney, said in reference to potential funding: "One potential was leasing AWSA water. It is clear in the Act that it can be used only in Southwest New Mexico. The Secretary of the Interior is the diverter. The process includes environmental compliance and a record of decision. I don't think you can lease."

The next item of discussion addressed the bylaws. Dominique Work, ISC attorney, passed around a draft of the bylaws. She said the version was the red-lined version produced the day before and included comments from Grant County and Catron County.

Aaron Sera, Deming clerk and manager, asked for discussion on the draft bylaws page-by-page.

Ryan Jameson, representing the Fort West Ditch Irrigation District, said he wanted to amend the New Mexico Unit Agreement. "I don't want to pass bylaws until we agree on the Unit Agreement."

Work qualified that she is an attorney for the ISC. "I am giving my opinion, not legal advice. I agree that the bylaws need tweaking, so I don't think approval can happen today. It is up to the entity to sign the Unit Agreement."

Jameson said he wanted in the Unit Agreement that the CAP Entity can lease water to Arizona, "because we won't be able to do anything else for at least 10 years. I want to earn money on the water."

Work said the bylaws are for how the entity will work. The Unit Agreement is a contract between the New Mexico CAP Entity and the Secretary of the Interior. "Approving the bylaws doesn't have anything to do with the Unit Agreement."

Brett Kasten, Grant County Commission Chairman, representing Grant County, said he thought the group needed its counsel on board, so "we can work on the bylaws as an entity."

Work said the bylaws could be amended at any time.

Amy Haas, ISC general counsel, said the group had no requirement for bylaws. "These are just to assist you in your operations."

Sera said he thought the bylaws "are essential to how we operate."

Jameson pointed out that when the entity passes the budget, "we are a full-blown entity without bylaws."

Work suggested the bylaws needed going over with a fine-toothed comb. "I can turn them around quickly."

The members continued the page-by-page review. Allen Campbell, representing the Gila Hot Springs Irrigation Association, said he believed each member on some issues should follow their association's bylaws.

Vance Lee, representing Hidalgo County, said he thought each association or board should appoint its own representative and alternate using the group's own bylaws.

To a question about reimbursement of members for trips, Work said the expenses should be pre-approved by the entire entity.

Kim Abeyta-Martinez, the ISC non-voting member of the entity, said for unforeseen needs, the chairman should be able to give approval.

Sera suggested a majority vote of the officers.

The issue of who would create agendas arose, and it was decided there should be a single point of contact, likely the executive director, once one is chosen.

Van "Bucky" Allred, representing Catron County as a county commissioner, requested the chair sign off on the agenda, even if the executive director compiled it.

Darr Shannon, NM CAP Entity chairwoman, warned the members if they were sending emails on business items not to choose reply all, so there would be no violation of the Open Meetings Act.

Haas concurred and told member to reply to only one point of contact or call the point of contact. "I recommend contacting the person by phone. Put in the email: 'Do not respond by this email,' if it's an informational email that is sent out, which does not violate the Open Meetings Act. It's only if something is approved by a perceived quorum."

Discussion took place on voting issues. Work said she would create a voting provision and get it back to the members.

On hiring staff, it was determined that the second fiscal agent would hire with entity approval.

Abeyta-Martinez said the group needed to decide on salary and benefits, the term, at will or contract for an executive director. "That has to be agreed upon by the second fiscal agent.

The members discussed whether it would be better to start with a contractor, but some thought it should be a full-time employee. No conclusion was reached. Shannon asked the members to get their ideas to Work for the next draft. The issue would be on the Sept. 15 agenda. Work asked that all changes be sent to her by Sept. 9, by the close of business.

Kasten made a motion to name Deming as the second fiscal agent. Sera said: "We will take it to our council, but the attorney has a question about sovereign immunity. He may recommend not to pass it."

The budget was discussed. Sera had created a rough draft, with three options—a contract director, a full-time employee director or a director through a temp agency.

A motion and second was made to go with a contractor and get a committee together that had experience in hiring.

Then Javier Diaz, representing Luna County moved to make Charles "Tink" Jackson the executive director. After considerable confusion, because the second fiscal agent had not yet been approved, Diaz said: "Whether it is premature or not, my intent is to have someone with experience in the AWSA and water law doing this job."

Campbell countered that a small group should determine the needs and create a job description. Sera said the fiscal agent has to follow its policies and procedures. Diaz amended his motion to make the position voluntary to start with. The motion died with almost all members voting nay.

Sera asked that the representatives from Deming, Grant County, Luna County, Hidalgo County and Catron County put a job description together for 20 hours, 40 hours, volunteer. "Although I think it should be an actual position."

Kasten moved to table the issue to the Sept. 15 meeting.

The group took a lunch break.

After the break, the next item was a discussion on the New Mexico Unit Agreement.

Work and Mary Reece, program development division manager at the Phoenix Office of the U.S. Bureau of Reclamation, asked for a small group meeting to determine the supplemental terms being requested by Reclamation and members of the group.

"There are a lot of questions on both sides," Reece said.

Sera moved and it was seconded and approved to table the item.

Allred said he would like to revisit some items at the next meeting, such as the budget with its administrative fee. "Would the second fiscal agent get that 7 percent?"

Discussion on possible financing options didn't get very far.

Jameson suggested leasing the water to Arizona. "We don't need a diversion yet. We just want to charge them for our water. Why can't we do that?"

Wendell Hann, Gila Farm Irrigation Association, said he would like an answer to that question and so would his constituents.

"Is my thinking off the wall?" Jameson asked.

Work said she thought it might be constrained by the AWSA and the CUFA.

Haas said she thought the issue might come out of the New Mexico Unit Agreement supplemental terms. "You will get an answer."

The next meeting will take place at 9 a.m. Tuesday, Sept. 15, at the Grant County Administration Center. The Gila/San Francisco Water Commission may meet after the CAP entity meeting.