By Mary Alice Murphy

The New Mexico Central Arizona Project Entity met in a virtual regular meeting on Tuesday, May 5, 2020.

People trickled into the virtual meeting, so it was about 15 minutes before a quorum arrived.

No one gave public comment. The entity intends to have public comment at the Monday, June 1, 2020 meeting, either emailed, if it must be held virtually, or in person otherwise.

Entity Executive Director Anthony Gutierrez said the main agenda item and purpose of the meeting was to discuss the recently released Draft EIS (Economic Impact Statement). "I want to help you navigate the long document, so that you can find what you are looking for and what you want to make sure is in the document, so we can make good comments. Please email the comments to me, so that I can compile them into a document from the entity."

The draft EIS can be found at https://www.nmuniteis.com

Gutierrez cited the executive summary. The introduction goes into the law itself, he said.

In section ES.4, Objectives, he pointed out: "While the proposed action provides for water storage, particularly in the Virden Valley, it also provides for improvements and diversification of agricultural uses, and I wanted to point out something that people don't necessarily recognize and understand and I think one of the major purposes of this effort is noted in the final bullet in the list of objectives for the New Mexico Unit—to provide flexibility for expansion to meet future water needs. I think people lose sight of the purpose for the act is to provide water for southwest New Mexico. The focus has been on the projects, with the diversions and costs, but people forget the need for flexibility to provide water for future water needs. I'm glad it's in the document."

He said it went on the describe the unit alternatives. The first alternative is the No Action Alternative. Gutierrez pointed out that the tables show what is described in the lengthy narrative in the document, and the tables set out the alternatives to make them more understandable.

Section ES.8 talks about the Final EIS and the Record of Decision. It notes that the Secretary may select one of the alternatives or combine separate analyzed project components from the alternative scenarios.

"It is an extremely large project, addressing three different areas, and separate components can be chosen for their most beneficial uses," Gutierrez said.

The Joint Leads, the Bureau of Reclamation, Lower Colorado Basin and the New Mexico Interstate Stream Commission have not identified a preferred alternative for the draft EIS. "The Joint Leads will consider public comment before identifying a preferred alternative in the Final EIS, in accordance with the Council of Environmental Quality's regulations," the document states.

He said he has some questions on the economic costs and how they came up with the specific costs.

Gutierrez said he had trouble navigating the document, so he called Sean Heath of Reclamation, and "I'm trying to show you what he told me. I wanted to see what the costs were, the potential benefits and the impacts for potential mitigation."

"When we look at annualized costs, I don't want to get people confused, there are two sources of funding, public funding, such as the New Mexico Unit Fund, and other sources of funding," Gutierrez said. The numbers he pointed out were without any public funding. "Go to the P, R and Gs (principles, requirements and guidelines) in Appendix 1. The average of the range of costs was used to determine the benefits. I wanted people to know where the numbers came from. If you have questions, call me and I'll help you go through it. If you have comments about the costs, potentially we can send the comments in and have the Bureau of Reclamation consider them."

Member Allen Campbell, representing the Gila Hotsprings Irrigation District said the NEPA is looking at an act of Congress. "The money we have is guaranteed by the government. I find it a problem for them to want us to go into the funding, because it's guaranteed for this project. We will also lose it if no decision is made. The downside of not approving the project is the loss of funding and the water."

Representing the San Francisco Soil and Water Conservation District, member Howard Hutchinson said in the chart Gutierrez had just described, "I'm looking at it and it shows 254 acre-feet of water applied. I hope that's a joke, because what we on the San Francisco are looking at is 1,800 acre-feet."

Gutierrez said he believed the number was incorrect.

"Just like when we received the first iteration of this draft, there are serious errors in this draft, too," Hutchinson said. "I looked at the biological assessment and it looks pretty good, but these calculations are mostly not believable. If some are this much off, then I can't believe anything. Just like the first iteration, they will get the calculations right in one place, but not carry them over to other tables."

"Those are things you should comment on," Gutierrez said.

Vance Lee, representing Hidalgo County, noted that the figures stated are based on the storage filling only once a year, not filling them more than once a year and using the water.

Gutierrez agreed, and said the information is also based on flood irrigation, which is used, but also sprinklers and drip irrigation are used, which changes the amounts of water. "I think the scenarios were put together because of historic use."

He said he wanted to familiarize the members with the document because going all the way from front to back would take longer than a month.

He pointed out a lot of tables are in the document and they should be cross-checked. "Apparently sometimes, they don't match the narrative that accompanies them."

Hutchinson asked to go back to Lee's point. "Yes, the storage can be filled multiple times, but it can also store adjudicated water, which would also potentially increase the use of our existing adjudicated water, which is a benefit."

"I think the issue is the baseline is the adjudicated water, by modeling in an attempt to determine the impact of the AWSA water," Gutierrez said. "They wanted to isolate the AWSA water and do the analysis solely on the AWSA water."

He pointed out Table 2-2. Summary Comparison of Alternatives. "I think we should make sure the descriptions are the descriptions we proposed. In the Economic Analysis we need to determine how they reached the economic numbers."

On the third page of volume 1, Gutierrez said: "In a nutshell, this letter, looking at the last paragraph, I'll read: 'While the Department cannot pre-judge the outcome of a Record of Decision in this EIS process, it is likely that the Department will select the no action alternative if no viable funding commitments for an action alternative solidify by the end of calendar year 2020. Even if the no action alternative is selected, it is possible that this project could become viable in the future; in that case, it can be re-considered at that time. More broadly, the Department remains committed to supporting the construction and operation of necessary water infrastructure to provide reliable water supplies to rural communities.'"
"I believe this letter refers to the decision by the Secretary not to approve the use of the construction funding that was denied last year," Gutierrez said. "I believe it refers to that letter which talked about the opposition from the New Mexico U.S. senators and all the opposition from New Mexico legislators and other groups. I understand that the department is trying to get support from New Mexico for this project, but the proponent of the project is the New Mexico CAP Entity. And I see this as a pre-judgement. I talked to the ISC and the Bureau of Reclamation and they don't actually know what this commitment has to be, but it seems they want some sort of funding commitment. I see this document as an analysis of the projects, of the impacts. For a department to set this sort of request as an either/or statement, I find a little disturbing. I would like to see this board at our next meeting include some language to that effect in our comments."

In Volume 2, Appendix B in Table B-1, the role of Reclamation is to be the lead federal agency for all environmental compliance activities under NEPA; prepare all NEPA documents; ensure the EIS complies with NEPA requirements; revise and approve project mitigation; ensure all information is adequate to issue a record of decision; fulfill the principles, requirements and guidelines; and fulfill obligations of Section 7 of the Endangered Species Act and obligations under Section 106 of the National Historic Preservation Act. Approval actions of Reclamation are to approve all contracts in the NM Unit Agreement Sections 9.1 through 9.5; authorize all diversions of AWSA water, in compliance with the CUFA and AWSA; approve and provide additional funding to construct a New Mexico Unit, in accordance with AWSA; and serve as signatory party to programmatic agreement for NHPA section 106 and New Mexico Cultural Properties Act compliance; and serve as consultation lead for NHPA and NMCP consultation.

"I don't think this EIS is the place to show cash on hand commitment," Gutierrez said.

Ty Bays, representing the Grant Soil and Water Conservation District, said: "I think what you just read I see as a pre-judgement. Although this board has borne the brunt of mistakes, this document with all its mistakes is unacceptable. If this were done by a private company, they would be fired or forced to provide some sort of justification. We need to get to the bottom of this. Whose side was the company on?"

Van "Bucky" Allred, representing Catron County, said: "This is outrageous. These documents are inaccurate. I would like to see some process to bring this to the attention of the Department of the Interior. We have tried to comply with all requests from Reclamation, and then we get this."

NM CAP Entity Attorney Pete Domenici said he wanted to make a couple of points. "I read this letter as having the same general tone as the denial of the construction funding about the state not supporting the project. I think the Bureau of Reclamation has been warning us if we don't have capital funding in hand, then they feel compelled by their P, R and G requirements to include in the cost of the water the capital costs for any infrastructure we're creating. I would throw out that we put on our next agenda a closed session, where we can discuss our legal options, possibly in anticipation of litigation. I've seen enough that a strong letter is not going to change anything. Of course, if we got some capital financing, it would change it. I'm not sure the end of year is appropriate, because eventually we will have to have capital financing for the water to be affordable. The deadline for comments is June 8, so we have very little time between the next meeting and the deadline. I think we need to create our own tables so that we show what are truly the benefits and the actual operating costs. I think the operational costs are not realistic. It's not going to take that much money to maintain two ponds in the Virden Valley. In addition to the comments, we need a strong letter or even a legal memorandum citing the NEPA statute that governs this EIS and stipulating that this deadline and these requirements are not appropriate. The board may want to authorize that it go in with or separate from the comments."

"The other option is that we need to pursue capital funding," Domenici continued. "Eventually, it will come before the ISC to see what funding from the New Mexico Unit Fund is available. I know we have talked about grant opportunities. If we are pursuing grants and we decide who applies for the grants, but I think it gives us the opportunity for a positive record of decision. We have to be pursuing funding and maybe contesting whether it is a requirement, whether the requirement for that timeframe is legally valid. And actually reworking some of these tables, so we don't continue to perpetuate these excessive operating costs. All of that needs to be done before our next meeting. We need drafts to the board before the meeting."

Gutierrez noted that the numbers in the tables came "from our engineers. The O and M (operations and maintenance) costs were derived from the New Mexico CAP Entity running the show. I think it is discussed in the business plan that if you make O and M part of the existing irrigation systems, it potentially may reduce the O and M costs. The costs in the tables came from us. We have no agreements showing what the costs will be. The costs are based on other types of systems and a dam, which were discussed with the Bureau of Reclamation. Can they be done cheaper? Of course, they can. Howard has spoken up saying the costs should never be that much. But we have never had any estimates from the ditch associations."

Domenici suggest trying to get numbers from the Sunset Ditch in Virden to reduce the numbers.

Gutierrez said the comment from Lee earlier shows there are errors in the tables. For instance, the ditch capacity is 35 cubic feet per second, but the maximum amount divertible is 20 cfs, which doesn't jibe. "A Virden-only alternative didn't exist until near the end, so the data was taken from Alternative B. And back to Vance's comment that we can divert and store more than once, keeps the O and M the same, but the amount per acre-foot decreases. I plan to put that in my comments. You must send me your comments in written form as soon as possible before our next meeting, so I can compile them."

Campbell suggested a closed meeting. Domenici said he envisioned a regular agenda with a closed session.

Bays asked if it could be an in-person meeting.

Because the Primary Election Day is June 2, the board members decided to meet June 1, with the location to be determined.

"If anyone has comments or questions on the EIS, get them to me as soon as possible," Gutierrez said. "I will try to get the draft comments to the members the week before the meeting."

The meeting adjourned.