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Published: 18 March 2020 18 March 2020

By Mary Alice Murphy

The previous public input at the regular meeting of the New Mexico Central Arizona Project Entity held on March 3, 2020 can be read at https://www.grantcountybeat.com/news/news-articles/56691-nm-cap-entity-heard-lots-of-public-input-at-regular-meeting-03032-part-1

Topper Thorpe of Gila continued the public comment. "The proposed M.H. Dutch Salmon Greater Gila Wild and Scenic River Act is not acceptable in any form. It is an additional attempt to allow the federal government to limit, restrict and control private property rights of landowners along the Gila River, which is neither warranted nor needed. It will have an adverse impact on irrigation and water rights and set the stage for numerous lawsuits, from the same activist groups that have utilized the Endangered Species Act to do the same."

He continued by saying it was obvious that the effort to enact the bill is a joint effort "between these activist groups and legislators to gain power and control over the river and to preclude securing of the 14,000 acre-feet of water and funding authorized by the Arizona Water Settlements Act for the four southwestern counties of Luna, Catron, Grant and Hidalgo, allowing that water to be lost to New Mexico and flow to Arizona."

"Landowners, who have a vested and economic interest in property along the river, who would be adversely affected by the legislation, which has been under consideration for the past three to five years, have been excluded from providing input on the proposed bill until they forced it recently," Thorpe continued. "It is unbelievable that legislators would select an activist group that has no economic or vested interest in the land to draft the bill that would impact land users along the river."

He noted that information about recent meetings was not widely publicized and information provided by legislative representatives was limited to how great this legislation would be and did not address any of the limitations or restrictions that would or could be imposed by the act. "There are a significant number of unintended consequences that landowners/irrigators will face, including lawsuits, condemnation of property, loss of water rights and limits on availability of water, as well as others."

Thorpe said he saw attempts to control who could have input by sending "a limited number of invitations to a select few landowners along the river to meet with legislative staff, even though all landowners along the river would be impacted by the legislation." He also alleged that staff concentrated on how to "wordsmith" the draft legislation to overcome concerns expressed by opponents to the legislation.

"The bottom line is that this is terrible and unneeded legislation that reflects a union between legislators and activist groups without regard for the property rights of the only true environmentalists, those who have a vested and economic interest in the land and utilize the land and water rights along the Gila River for all or part of their income," Thorpe said.

"Attempts to pass this bill must be abandoned," Thorpe concluded.

The next speaker J.T. Hollimon lives in Cliff. "Our ranches are on a tributary that drains into the Gila. This legislation is a complete travesty. It leaves lots of loopholes for litigation. It's a joke. It's simply a matter of control. My ranches will be controlled by the government."

He complimented the senators' staff representatives for their work, as well as the members of the NM CAP Entity for what they do. "But I'm concerned. They put a deadline on it and will introduce it, likely by attaching it to something that has to get passed. We are not being represented by our senators. Thank you for allowing us to express our opinion on this terrible legislation."

Don Luhrsen spoke again. "The river management plan is where the litigation will start."

Ron Troy of the New Mexico Land Conservancy said he believes the legislation is not unreasonable, as he thinks about the river from the top of the watershed to where it runs into the gulf. "We are a greedy lot of people taking all the water. They want to take our tax dollars and dam it up. Yes, I want to protect water rights, but we need to know how to use the water more efficiently. We have to quit damming up rivers and taking more water, so we can go fishing. We have to figure out how to use less water."

Carolyn Nelson said she had a meeting with a guy from an environmental group. "They have ways to pressure people into selling their land to these conservation groups. I could not believe it. There are ways of pressuring people on everything from the wolves into signing agreements to give away our water. They're always pushing you until you fall off a cliff. When these multi-million-dollar groups say they are saving the land or the water, they are doing it in a sneaky way. We in the community are saving the land and water for the next generation."

Hazel Donaldson said her concern over the wild and scenic designation has a lot to do with my experiences from the time when she lived in Apache County, Arizona. "I moved there in 1979 as a young bride. In the national forest, the environmental groups were using the Endangered Species Act, because of the spotted owl, to shut down the timber industry. The groups were telling us they were not taking the jobs. Soon the sawmill was gone. The loggers and the ranchers always knew the conditions of the forest. Our lives and livelihoods depended on it. Because they weren't logging anymore, the forest got overgrown, then we had a long drought. You remember the Rodeo-Chediski Fire, then came the Wallow Fire. I know what happens when the federal government has control and tells people what they can do. They used the spotted owl. When the fires took their habitat, the environmental groups were nowhere to be seen. They don't care about the spotted owl. They care about their bottom line. We don't need more control from the federal government. We need local control, because they are more responsive. The senators should have been listening to us. They don’t come talk to us. Rural America is under attack. Getting representation is tough. I have seen in Apache County what happens with federal acts. They are undoable."

NM CAP Entity member Allen Campbell, representing the Gila Hotsprings Ditch Association, added that the NM CAP Entity is the forum to be able to hear sides of an issue. "We have touched on issues near and dear to us. I want to thank Topper for his comments. He is correct that the core of the act is to allow litigation. We should ask for safe harbor. We already have the approval to build a diversion. I believe the CAP Entity should be included in safe harbor. I believe through safe harbor they have to make us whole. The act is superfluous. The secretaries of interior and agriculture have to make us whole."

Under old business, NM CAP Entity Executive Director Anthony Gutierrez noted that New Mexico Wild spoke to the all the entities, Silver City, Grant County, Bayard and Hurley and the legislators, and convinced them how wonderful it would be to protect the rivers with wild and scenic designation. "Only Grant County Commissioner Billy Billings opposed it. The Forest Service was doing a similar process under their plan revision but decided not to recommend any wild and scenic segments. I read the Q and A that the senators were sending out with their representatives. I feel like the legislation doesn't address our concerns. In the Q and A, they say the amendments address the AWSA, water rights, but the legislation doesn't address them effectively. I don't know how effective it is to send comments to Udall and Heinrich, because they oppose everything we're trying to do. I talked to the Forest Service and the legislation is not specific on who will manage the designation. I went to the Forest Service again and they said the Forest Service will form the management criteria and implement it into a wild and scenic management plan. The Gila National Forest just put out their draft on the Forest Management Plan revision and the section on wild and scenic has a huge difference between the Wild and Scenic Act and the amount of miles the Forest Service might consider designating as wild and scenic. (GNF Supervisor) Adam (Mendonca) told me the Congress could put criteria in the legislation and the Forest Service would have to manage it according to that criteria. Most of the time, the criteria would be similar to what the Forest Service already does, but sometimes it's more stringent and easier to litigate and the management agency could also be litigated against. It seems the criteria could be in the act, but the criteria could be developed after the act is passed. Right now, it says that the protection extends to one-quarter mile beyond the high-water mark, but it could be extended if there are wild or scenic properties to the segment. The Wild and Scenic Rivers Act differs from the Wilderness Act on infrastructure projects. For instance, in the case of a permanent ditch permit from the U.S. Army Corps of Engineers. However, in the WSR section 7, there is potentially a further barrier to developing water. With NEPA, CUFA, forest management, BLM, tribes and then on top of all that the WSR, it could take years, with all the additional layers of bureaucracy to alter anything, access, recreation or anything. The act may not directly impact water rights, but indirectly it will greatly impact them. I will volunteer to put comments together with the board and (NM CAP Attorney) Pete (Domenici) using the comments heard today. Right now, the legislation is too vague, with too many unknowns such as the amount of land encompassed. I disagree that the legislation will not impact things already in place. I recommend we make a formal response as soon as possible."

Howard Hutchinson, representing the San Francisco Soil and Water Conservation District, said: "It's interesting. A number of years ago, the Secretary make a presentation to the Utes on a potential national monument that supposedly would protect tribal lands. The tribal chair asked: 'Just who are you protecting them from? We're already protecting them.' He told Secretary Babbitt to leave and not to send any federal agents to survey because they would be immediately arrested. When he happened upon agents that had been sent, the tribal chief promptly arrested them and sent a formal letter to the secretary."

"What are we protecting these rivers from?" Hutchinson asked. "I suppose if you have disdain for ranchers, farmers and those who work in the timber industry, that they would say they are protecting the rivers from these people who are destroying these resources. Historically, we can look at this situation and see beautiful areas. With all these people living here for hundreds of years, and, in the case of the original inhabitants, for thousands of years, they have been protecting and conserving these rivers. We have beautiful pristine areas that we are protecting." He said he had a list of Forest Service criteria for managing wild and scenic designations and he read from them. They are criteria the Forest Service has to follow with no deviation allowed. They include visual quality, even beyond the boundaries of the protected segments, which would prevent any semblance of restoration, such as cutting down some trees, because it would ruin the visual quality.

He said the SFSWCD submitted specific comments and included language saying that the recommendations do not construe any support for the WSR or any other wild and scenic designations in their region of authority or in any part of New Mexico. "Every portion designated in the legislation includes grazing allotments, patented mining claims, fuelwood and medicinal plant gathering areas, hunting and camping and places of spiritual renewal and worship. These uses should be taken into consideration in the NEPA process before any segments are designated. We suggest that any designations should be put through a full-blown environmental impact statement. We also note in our comments that every side canyon off the San Francisco is a potential place for storage of Arizona Water Settlements Act water of 4,000 acre-feet, as allocated to the San Francisco Basin. If they are true to their word that they do not want to impact the eventual capture and use of AWSA water, they should include specific exemptions or safe harbor as Mr. Campbell has suggested. If we create all these exemptions, then why designate it as wild and scenic?"

Vance Lee, representing Hidalgo County, said: "In light of all the provocative comments made today where I learned a lot, I ask Dara (Parker, representing Sen. Martin Heinrich) and Melanie (Goodman, representing Sen. Tom Udall), if a tape of these comments could be made available to the senators to listen to the people who have spoken today?"

Ty Bays, representing the Grant Soil and Water Conservation District, asked that Gutierrez and Domenici be allowed to draft comments and have the chairman sign it if it needs to be done and sent before the next regular meeting. "The biggest impact to us would be to limit the AWSA water usage. I wonder, if the federal government in its AWSA gave the right to the water to New Mexico, if the federal government shouldn't protect that water. This wild and scenic act takes every acre-foot of water, so that we would be unable to develop it. The federal government gave us this opportunity and now they are taking it away. The abuse and litigation by environmental groups will be able to stop everything—logging, which is already pretty much gone, livestock will be gone from the forest— and there are no endangered flycatchers in the forest. They are all on private land. These environmental groups have gotten filthy rich. And we know the senators let New Mexico Wild write this legislation to stop the development of AWSA water."

Van "Bucky" Allred, representing Catron County, said on behalf of the New Mexico CAP Entity and the San Francisco Soil and Water Conservation District, "I ask Anthony and Pete to develop the comments. We have projects. The members up here are here out of passion to make our diversions better. In Catron County we passed a resolution against the Wild and Scenic Rivers Act. We asked the senators to come to this area and hear the voices of the people. In the past month of meetings, overwhelmingly those attending them were opposed to the WSR. (Mark) Allison (of New Mexico Wild) has no nickel in this river. The people who have put our souls and money in conserving our rights are strongly opposed."

Hutchinson noted the Committee on Energy and Natural Resources would likely be considering the bill, and "we can send comments to the committees when it is under consideration, but I recommend we do that before introduction of the bill."

Joe Runyan, representing the Gila Farm Ditch said he wanted a comment from Domenici. "Wouldn't it be better to create a line item to protect the adjudicated water rights and the AWSA water?"

Domenici replied that he thought he would like to draft safe harbor language with a disclaimer that it does not indicate that the group supports the WSR. "The draft we have seen has an extremely large number of miles to be designated. A couple of stretches are put in to make it particularly difficult for development of AWSA water."

Hutchinson said he believes the Buffalo River in Arkansas is the longest that is protected with Wild and Scenic designation. "But in this draft, there are more than 100 miles of the San Francisco to be so designated. The individual segments are small, but when you total them up and look above and below the segments, it's 600 to 700 miles combined."

Campbell noted the lower end of Mogollon Creek is one of the driest areas in the Gila Basin, but a large amount of water goes through it. The WSR has blocked up the gap. "Apparently that is the whole function of this act."

Several items of new business were considered. A scope of work for Stantec Engineering to provide preliminary design drawings, surveying and geotechnical analysis for the recommended preferred alternative in Virden was discussed. Hutchinson said he was the lone vote against the preferred alternative. "I think this is premature." Lee moved to approve, it was seconded, and the only one opposing it was Hutchinson.

The next item for action was the Bureau of Reclamation's Fiscal year 2021-2022 bi-annual project plan for continuation of the NEPA process.

Gutierrez noted the Bureau of Reclamation has to submit the plan annually, even though it is for two years. "It is an estimate of the amount of $635,000 needed to go from July to the expected record of decision in December and beyond."

"What is being shown is that there was no possible way Reclamation and the Interstate Stream Commission were going to get NEPA done by the deadline of December 2019," Hutchinson said.

Gutierrez said he believes it can be done by December of 2020. "We expect the notice of release of the draft to be in the Federal Register in mid-April, so the record of decision can be done by December. Then more has to happen after the ROD."

The plan was approved unanimously.

Next came the executive director report and the members' roundtable discussion.

Gutierrez said as soon as he gets the schedule for the draft, he will get the information to the members. "The Silver City Daily Press has given me the opportunity to write a column to express what the CAP Entity is doing. I am more than willing to do it. It will be 600-800 words. I will try to explain the entity's position and how we are moving forward."

Allred said he encouraged Gutierrez to see what will be printed before it is. "I don't trust what they write and how they edit things."

Lee said in the last article in the Daily Press, they quoted him saying something that didn't happen, and "I didn't say. I think it's good to get the truth out there, as long as it's the truth."

Hutchinson said that a lot of people have seen the proposal for the Luke conveyance system for generating electricity off the San Francisco. "The prediction that we've made in the past that corporate interest are interested in this water is proved by that proposal. They want that 14,000 acre-feet of water and to store it in a 200-foot high concrete dam at the lower end of the San Francisco right as it enters Arizona, basically right under the Tucson Electric power lines. It's a proven system to generate electricity and they use some of it to pump the water back up the hill to generate more electricity. I haven't seen that they have received a permit and it has been vociferously opposed. I'm not sure that I'm in favor of it, either, unless we can figure a way to store our 4,000-acre-feet of water in New Mexico, but I don't know how."

Shannon said the next regular meeting would take place April 7, but a special meeting may be called before that.

[Editor's Note: That special meeting was set for March 24, but has been cancelled because the Grant County Administration Center will be closed for group meetings.]