In spite of loss of federal construction funding, "it's about the water"
By Mary Alice Murphy
For the first item of business on the New Mexico Central Arizona Project Entity regular meeting on Jan. 7, 2020, Howard Hutchinson, representing the San Francisco Soil and Water Conservation District, moved to retain the officers from 2019. They are Chairwoman Darr Shannon, representing Hidalgo Soil and Water Conservation District; Vice Chairman Vance Lee, representing Hidalgo County; and Secretary Van "Bucky" Allred, representing Catron County.
Shannon introduced the Open Meetings Act for 2020: "It is identical to last year's, except for the dates." Members approved the OMA 2020.
No one stepped up to give public input.
Under old business, NM CAP Entity Executive Director Anthony Gutierrez said he had a phone call on Dec. 20, 2019 with U.S. Cabinet Secretary of the Interior David Bernhardt. "We spoke for a couple of minutes, with him explaining to me he was not able to approve our request for an extension on the approximately $54 million of construction funding. Subsequently, I received a copy of the letter sent to the Bureau of Reclamation. It's self-explanatory. He explained he understood all the issues we had during the tenure of the New Mexico CAP Entity, and he understood we were the ones requesting the extension. But because New Mexico was named in the Act and had actively opposed the project, he couldn't give the extension."
[Editor's Note: According to the Arizona Water Settlements Act, the deadline for determining a New Mexico Unit project and securing the funding for construction of the project was Dec. 31, 2019.]
"I hope the board doesn't point fingers," Gutierrez said. "I hope we can be proactive. One of the statements in the letter is that the New Mexico CAP Entity does not lose the ability to develop the AWSA water. Funding will be a challenge. The opposition has said all along that the taxpayers would have to pay. Losing the construction dollars solidifies that. It makes it more difficult, but not impossible."
Hutchinson agreed with Gutierrez's assessment. "It's ironic that the opponents have said taxpayers will pay for the unit and now with the loss of the funding, they will. New Mexico has funded lots of water projects, across the state, including the Ute Reservoir and the San Juan-Chama projects. I disagree with Anthony about not pointing fingers, because it's the state that carries the blame. The letter from the secretary received through Reclamation lays the blame directly on the state of New Mexico. The governors' offices and the Legislature have blocked and delayed until we reached the 11th hour, and they continue their blocking and delaying. I congratulate the environmental community for their campaign of obfuscation, echoed by the governor and legislators, who depend on their donations. It was a failure on our part to put out the message, but we didn't have the dollars, the millions that they do to put out the disinformation campaign. We are where we are. I agree with Anthony that we need to take steps forward. I think a number of projects being outlined in the draft EIS are worthy of being funded with the New Mexico Unit Fund. If we use the NM Unit Fund dollars, we do not have to go through the Bureau of Reclamation, but we only have to work with the ISC. We have to watch the politics in the upcoming session."
Allred said: "I agree with some of what Anthony said. We do not need to look at not getting the extension as a crisis. It really is a shame that we continue to lose the 14,000 acre-feet going down the river to Arizona. It is disappointing that people in our area are apathetic. We have lost jobs; it has created more crime. It's part of our fault not to get the information out. In the future, we do not have the news media on our side, and so many programs in my county that are so destructive and counterproductive, that we have to point out the benefits of this water and not sit around and listen to Chicken Little and the sky is falling. I hope people will see the benefit of getting this water."
Lee said, as he was trying to organize his thoughts on the secretary not granting the extension, he realized the need to expose how the two senators and representatives, "plus our state senator, who became lieutenant governor worked so hard against us getting this water, resulting in a loss of up to $62 million in construction funds for southwest New Mexico."
"I came across an interview of Anthony by the Grant County Beat," Lee continued. "That is the one exception of the (Grant County) Beat of the media being against us. The Beat is not. None of the of the politicians, other than our lieutenant governor, lives in the four-county area, and none to my knowledge lives on the Gila or San Francisco river, yet they were able to convince the secretary to give that $62 million to Arizona. We have to use the New Mexico Unit Fund and seek other funding to get our projects done. I would like to reinforce that Mr. Gutierrez expressed the thoughts I had. That may mean that other worthwhile projects will not get funded that would have benefited southwest New Mexico. It's beyond my ability to comprehend how people who ostensibly represent southwest New Mexico are willing to give Arizona the $62 million, as well as the potential of more millions of acre-feet of water. We've already let a million acre-feet of water cross into Arizona since 1968. One would think these people are working for Arizona rather than New Mexico. I can only hope the people of New Mexico will consider who will represent us in the future."
Allred apologized to the Beat.
Shannon said: "Mary Alice tells the truth."
NM CAP Entity Attorney Pete Domenici Jr. said every board member should be commended. "It started as an uphill battle, and it continues. There have been strong comments today."
"Reclamation is about 85 to 90 percent through the NEPA process on the project that we no longer have funding for," Domenici said. "I thank the board, and I think the board has done a great job. The future of the West is surface water. It puts us in conflict with environmental groups, because the water is valuable to them, too. Surface water is renewable. Rural communities have to grow, or they shrink catastrophically. If the board chooses to go on, we have work to do."
Joe Runyan, representing the Gila Farm Ditch, asked Domenici what he sees as the future. "Is there a way to move forward?"
Domenici said that question led into the next two items on the agenda.
Aaron Sera, representing the city of Deming, said he had a question for Gutierrez and Domenici. "Is there any action we can do with this item? Can we appeal this decision?"
"I think there is not any legal action for turning it around," Domenici replied. "Maybe in 20 years, Congress can, but not now."
Allen Campbell, representing the Gila Hotsprings Irrigation Association, agreed. "As I understand there is no action against it because it is a cabinet level decision. Presidents don't rescind departmental decisions. When life shuts a door, it allows others to open. It is a necessity to secure this water. It has not gone away. The dedication to secure this water has not gone away. This is just a process. I’m not giving up. We have to secure this water to better our agricultural communities. It will also better our towns and cities. One door opening up is the oil boom. We have a better potential to get dollars. We will continue. We have a job to do. Let's not look in the rearview mirror."
Hutchinson said: "In our discussions with the Secretary, he made it clear that he is a stickler for the law, and he felt his hands were tied, given the state of New Mexico showed no interest in our securing the water. We could show that New Mexico worked against us. Maybe we should send a thank you letter to the secretary."
Shannon said: "Giving him our understanding of his decision."
Domenici said he and Gutierrez would write the letter.
The first item under new business was to confirm the CAP Entity's intention to continue the NEPA process.
"We have the draft EIS," Gutierrez said. "It is nearing completion. Through we have lost the construction funding, I, as a former grant writer for Grant County, see possibilities. We want to complete the EIS and get a record of decision to move forward. I recommend the board confirm our willingness to continue the EIS process."
Members approved that letters be sent to Reclamation and the ISC of the entity's intention to continue the EIS.
Sera asked how long this EIS would last.
Gutierrez said at least five to 10 years.
"This EIS is a great planning opportunity," Sera said. "We have to have it to show that this is the plan. Maybe we can make the decision to become a political subdivision."
Gutierrez said he wants the board to push the preferred alternative, which would be the Virden project. It is completely affordable using the New Mexico Unit Fund and still have money left-over for other water utilization projects. "In doing so, it would solidify our wish to secure the AWSA water. I think it's imperative to secure our right to the AWSA water, so it doesn't become more difficult in the future."
Domenici asked how close the draft EIS is to being available.
John Rasmussen of the Phoenix Office of the Bureau of Reclamation was on the telephone and said: "It’s pretty close but we're still looking at the document depending on changes in the funding."
Domenici asked how much more expense would be incurred for the EIS.
"Not much," Rasmussen said. "I'm thinking we're trying to do it under the funding we already have."
Domenici said the economic section is kind of chicken and egg. "Without the construction funding, it was to be within the amount in the New Mexico Fund. There might be significant differences in water rates, without the construction funding."
Gutierrez said he had a discussion with economist Sean Heath of Reclamation. "Adjustments can be made prior to the final draft."
Rasmussen said he would talk to Heath. "I think we're looking at two months to the draft.
"Getting alternative funding would be helpful," Domenici said. "To get the New Mexico Unit funding, we need this commitment from the ISC. I think the ISC is waiting to look at the official EIS. I would urge you to put in alternative language."
Gutierrez said they could put urgency in the letter to the joint agencies.
Hutchinson pointed out that the draft EIS completion is one thing. Getting to the record of decision is a separate issue. "Are there enough funds to get us to the final EIS? I thought the money from the ISC is to final completion."
Rasmussen said the contractor is funded. "We may come up short on our end. I don't have it all in front of me."
ISC Attorney Dominique Work, also on the phone, said the ISC's position is before it will authorize more funding, "We want the draft published first."
Domenici asked if the entity has funding to continue to hold its meetings.
ISC non-voting member on the entity, Marcos Mendiola, said the process has a budget. "There is funding available, but we have not yet approved the budget to get to the record of decision, but yes, we have enough money to get us to the draft EIS."
Shannon asked if there is money for the final EIS.
Mendiola said money has been set aside for the entire EIS process, however, the commission has approved only enough up to the draft EIS.
Gutierrez said the CAP Entity is fully funded until the end of June.
A motion to send the letters to the joint leads, Reclamation and the ISC, that the entity wants to continue the process to the draft EIS, was approved.
"Do we have to make a statement that we want to continue past the draft EIS?" Runyan asked.
Mendiola said it was up to the entity board to decide if it wants to continue.
The second item of new business addressed a discussion of possible activities and the role of the NM CAP Entity.
"We have to make sure we don't lose focus," Gutierrez said. "We have taken on the responsibility to design the New Mexico Unit. I think our priority is to secure water for southwest New Mexico. Other projects we have, by statute, the authority to work with the ISC to make sure we approve projects for our constituents, also that we can authorize our projects. This is more of a reminder of our role. While we have another bump in the road, it's not the end of the line."
Domenici said: "The board's role can be to get to the draft EIS, hopefully with two economic models. That decision will determine whether the record of decision is positive. It is possible we can move forward and get a no-action RoD. Is that positive for us? We have to think about five to 10 years out. Our active opponents will push for a no-action alternative. My feeling is that there is an active group wanting to put the nail in the coffin of the New Mexico CAP Entity. We will still have studied the Gila, the San Francisco, the Virden Valley, but we have to secure funding. We're always facing a tight window looking at the next battleground even if we get the EIS, they will want no action. I think it may end up with no action. Even with the sympathetic letter from the secretary, he may agree to no action. With the cost of water, with the financing charges, he might say the same thing. You've done a great job; the water is still available, keep going, use what you can. The other way we can end up is finding the funding, likely through the NM Unit Fund. We have two months until the draft EIS, then another two months or more for comments, and additional time for the ISC to make a decision whether to go to the record of decision."
"In the meantime, can I make a call for AWSA water?" Runyan asked. "What if I decide I want to put another 100 acres under cultivation, with no additional infrastructure costs?"
Gutierrez said he thought certain components "would still have to be analyzed on what your project would entail solely on your project, unless it's under a component that is under the New Mexico Unit. But I think there may be some NEPA process to be done."
Hutchinson disagreed. "I think if you are on an existing ditch and want to apply AWSA through the existing ditch, I think the law agrees with a contract, based on AWSA language. In fact, it's one of the things we are pursuing in Catron County. We have dry land and we have the infrastructure in place. I think a person could apply for a contract. If it's outside the scope of the draft or final EIS, it would require additional analysis. I think the EIS will support much of the infrastructure we have planned"
"There are international corporations out there with billions of dollars looking to invest in what?" Hutchinson asked and answered. "Water. Nestle has spent billions around the world into acquiring and utilizing water. If the political subdivisions don't do something to use the water, the corporations will. Look at the San Augustin Plains. That company wants to develop the water and they are not stopping the spending to get there, although they have faced opposition. If political subdivisions don't do something to support their residents, the corporations will be standing by to acquire the water and they can buy legislators and have the act amended in a snap to deliver the water to them because they can rightly show that New Mexico is not interested in the water. The opposition to us does not have enough money to stop them."
Gutierrez noted that the Lion's Gate already made an application for the water and already said: "We don't want your money. We just want your water."
Domenici said he wanted to give a third viewpoint. "One of our goals is to complete the NEPA and try to get a preferred alternative. It would give the entity a role in setting up a construction project, building ponds, do direct diversions, groundwater diversions, but we will need some NEPA coverage, maybe just an environmental assessment. With the draft EIS, we have tools to do direct diversions. Without the CAP Entity, it will be more difficult. There are several purposes to us remaining, such as creative ideas, direct diversions, and large-scale projects, like water to Deming. We have the two amendments to the JPA. We can work with Freeport and other projects. The original JPA would allow us to do the Virden project. So other activities and roles of this board need to continue. I think we have the direct diversion option."
Campbell said he thought they were "getting in the weeds. We can obtain benefit from what the NEPA says. I would like the chance to continue to the final EIS and give this some time. We're going to try to re-invent ourselves. Should we wait to see what the EIS says? I'm not ready to make a shift into what direction to take. We're exploring a direction. I understand the corporation issue, as well as the small things we can do."
Hutchinson said: "We built a box. Inside are our proposed alternatives. Now we're starting to think outside the box. I have approached the previous sponsors of our bill to become a political subdivision to re-introduce it. We will put an appropriation in that legislation and also request the reintroduction of a memorial on our purpose. I don't expect either will pass this session, but it will give us a chance to provide more education and maybe some common sense."
Domenici said: "We want to confirm that we still have a joint powers agreement. We have a public face; we have largely completed the NEPA process." He confirmed that the second amendment to the JPA had been approved by the DFA to potentially provide funding to other water projects in the area.
Campbell continued: "It will take a while to change our objectives. I've had environmentalists ask me if we will close up shop. We have to be careful. Let's not seed the area with directions we are thinking about. Let's not pre-arm them, because then we will have more opposition."
Shannon said perhaps things could be discussed more at the February meeting.
Hutchinson pointed out that each subdivision that the members belong to could contact their legislators and ask them for support. "They include Rebecca Dow, Gail Armstrong, Candie Sweetser and Gabe Ramos. Tell them we have their backs because they will get flack."
Under the executive director report, Gutierrez said he had forwarded to the chair a couple of things, including a meeting to take place Jan. 15 on the wild and scenic designation.
"The Gila National Forest draft plan is now available to view online," Gutierrez said. "I have a copy of the preliminary draft EIS, because Norm Gaume got it through an IPRA request. I sent it to Darr."
"I will send it to the members and alternates," Shannon confirmed.
Gutierrez said the budget has some professional service funding that he has given to Stantec to move forward with the Virden project. "I want to bring it to the board next month."
Hutchinson was the first to speak as part of the members' roundtable discussion.
"In regards to the proposed wild and scenic designation, I've read through it," Hutchinson said. "They seem to have left out the language about it not affecting AWSA water. I find it very interesting that they left it out. Everyone else should be aware that the proposed list of stream segments has been expanded drastically and is more than 400 miles and even upstream from the segments will be affected. There are no maps, no legal descriptions of the segments that will fall under this act. No matter what, they will have your water rights and use of your property regulated. No matter what their summary of the benefits and declarations say that they will not affect, it cannot guarantee that litigation will not commence against property owners. It is very disingenuous of our senators and representatives and proponents to say that it will not affect our private property or water rights. We don't think wild and scenic designation gives any benefits to the environment or property owners. I worked up some language as a proposed amendment to totally exempt AWSA water. But I don't want anyone to think that we agree with the designation. We are totally opposed to wild and scenic anywhere in the U.S. It creates no benefits and it brings negatives to property owners."
Lee asked how much longer the comment period is.
"Until the language is dropped," Hutchinson said. "We should comment early, often and regularly."
Lee asked if the board should take action at the next meeting.
Hutchinson said some senators that support the designation are looking at must-pass legislation to put it in. "It's still a draft at this point. I'm not in favor of any segment being so designated. I know that they load bills with lots of give-aways. If they get some segments taken out, they are tacitly agreeing to the rest of it."
Allred said Catron County had already passed a resolution against it. "We invited both senators to come talk to the stakeholders about it, but neither has come, or even thought about calling. I forced myself into a roundtable on the issue. There were 12 people present and nine didn't know anything about it. New Mexico Wild is helping to craft the legislation."
"I took a resolution to Hidalgo Soil and Water Conservation District opposing the designation," Shannon said. "We approved it and sent a copy to the governor and Rep. Xochitl Torres Small. Heinrich and Udall went to our commissioners to rebuke our decision."
Hutchinson said: "All 47 soil and water conservation district in the state adopted resolutions against the designation and the joint cattle growers also adopted resolutions against the designation."
Sera asked about an appropriation for the entity to become a political subdivision. "Is it coming from the New Mexico Unit Fund?"
Hutchinson said: "Yes."
The next meeting is tentatively set for Feb. 4. Sera noted that his time would be better spent in Santa Fe.
Gutierrez suggested the meeting be set. "We can always cancel it."