NM CAP Entity does not agree with ISC decision in special meeting – 063020
By Mary Alice Murphy
Once a quorum of members was determined at the New Mexico Central Arizona Project Entity special meeting on June 30, 2020, one public comments, which was more of a question was asked by Ruby Davis.
"Has it been determined or can it be determined how much water it would take to replenish the water table of the Gila-San Francisco basins in the area if we get the AWSA (Arizona Water Settlements Act) water as promised?" Davis asked.
Vance Lee, representing Hidalgo County, said because the entity does not answer public comment questions, she should contact the Entity Executive Director Anthony Gutierrez.
Howard Hutchinson, representing the San Francisco Soil and Water Conservation District said the request by the Interstate Stream Commission for a "Mutual Consent to Terminate the Advanced Funding Agreement for the New Mexico Unit EIS (environmental impact statement) is totally out of line. There should have been a process before the ISC took the vote to terminate. I suggest we crumple it up and send it back and tell them to proceed under the terms as written in the agreement."
Allen Campbell, representing the Gila Hotsprings Ditch Association said: "I believe that Howard is spot on. Rather than telling them to put it where the sun doesn't shine, we should tell them to redo it in an appropriate manner."
Gutierrez said: "Prior to the vote I have on the screen, the termination portion of the agreement." He pointed out that Section XII A says that termination of the agreement by mutual written consent of the Parties may occur at any time. Section XII B states that a written Notice of Termination must be given to the other Parties and shall indicate the cause for termination. "If termination is not by mutual agreement, a Party may only issue the Notice of Termination if the Parties have completed the Dispute Resolution process discussed in Section XI above."
"If the parties are not in agreement, then we will go to the ISC and tell them why we feel they didn't follow protocol," Gutierrez continued.
Joe Runyan, representing the Gila Farm Irrigation District, said he didn't get it. "If there was no disagreement from the Bureau of Reclamation, where is the disagreement?"
Gutierrez said he believed it was a result of two actions taken at the recent ISC meeting. "The funding was cut, and an action was taken at the meeting not to proceed with a New Mexico Unit. As I understand it, the Entity action today is because they ISC did not provide to us sufficient and formal notice according to the funding agreement. Instead they provided us the Mutual Consent to Terminate."
Dominque Work, ISC attorney, said the intent of the mutual consent was to meet Section XII A, with the Entity and Reclamation agreeing to terminate. "If the Entity or Reclamation does not agree then we have to go through the dispute resolution."
Campbell said: "We could say we don't agree and then go to dispute resolution."
NM CAP Entity Attorney, Pete Domenici said the dispute resolution provision is not very precise or prescriptive. "We might want to think about what sort of dispute resolution needs to be taken up, with dates and such. All the parties are stuck with this language in the agreement."
Hutchinson restated his motion to say that the Entity will return the form and tell the ISC to proceed through the process as it is listed under Section XII B.
John Sweetser, representing Luna County, seconded the motion.
"This dispute resolution is not defined and there are a number of disputes, not just under their failure to follow XII B," Hutchinson said. "We have not completed the dispute resolution process, and it is not mutual. I'm not sure how to set up the dispute resolution. I have pointed out to the ISC numerous violations of the National Environmental Policy Act in the draft EIS (environmental impact statement). I have pointed out inconsistencies of policy the ISC adopted under prior commissions. I have pointed out to the governor and legislators that the Legislature appropriated the funds for the NEPA process. I do not believe the ISC has the authority to make a decision on appropriation. I don't think the ISC has the capricious authority to violate the terms of the agreement we had with the ISC and with the Bureau of Reclamation on proceeding with the NEPA process for the CAP Entity projects. I don't believe the Interstate Stream Commission has arbitrary ability to terminate the agreement between the ISC and the BoR without going through that termination process. We have not entered into any termination of the agreement with the ISC, the CAP Entity and the Bureau of Reclamation. There are numerous things that need to be covered in the dispute resolution. I would submit that if we cannot resolve this with the dispute resolution, we should move toward a notice of intent to sue the ISC and Reclamation."
Gutierrez pointed out that other documents, such as the MOU with the NM CAP Entity and the JPA, also have termination procedures.
"I would like to add to Howard's list the limited discussion at the ISC meeting on what the role of the New Mexico CAP Entity would be in the future. There was a request from one of the commissioners for discussion between the two regarding amending the JPA to recognize that the ISC wants to move more in the direction of non-unit alternatives," Domenici said. "The Interstate Stream Commission wanted to see what we propose, if we mutually agree upon the path to amend or modify the JPA."
The motion unanimously passed.
Campbell said the action was necessary, because the Entity has not reached a decision on litigation, "I believe we need not to capitulate at this point. We need to be able to maintain a posture where we can sue. If we agree on termination, we have shut that door."
In the executive director report and Members' Roundtable, Gutierrez said he would begin to meet with ISC staff to begin the dispute resolution for the termination notice. "It is my understanding we will have a meeting in a week and hopefully will have some sense of how the dispute resolution will be done."
Hutchinson said at a previous meeting the entity had an agreement to proceed with a scope of work for the contracting engineers. "That needs to be on the agenda for our future contract obligations."
Gutierrez said most of that was terminated because there is not enough time and "the governor's directives is that the budget close today (June 30). Our next budget does not have a line item for professional services. We don't have a purchase order or anything."
Hutchinson said he would like a discussion on "what is our budget, do we have a budget and what contracts do we have. I would also request that more people participate in the dispute resolution discussions. This is being recorded by the GoToMeeting app, will you make the recording available? Will you also provide a transcript if possible to have it available?"
Campbell had a question on the terminating of the engineering agreement. "Is there any penalty clause in the agreement? We need to understand that if there is, we would need to be in negotiation on who pays the penalties."
"There are no penalties," Gutierrez said. "The engineers only work while we have an approved scope of work. We didn't provide direction, so there is no contractual agreement to pay anything further."
Sweetser noted he had read an article in the Las Cruces Sun-News regarding Elephant Butte, as having one of the worst years for being able to provide obligated water. "It struck me as mind-boggling that we can't get the 14,000 acre-feet of AWSA water. It puts things into perspective."
The next meeting will take place Tuesday, July 7. Campbell asked if it could take place earlier, since the meetings are virtual no one is having to travel to get to the meetings.
Gutierrez said there should be no need for an executive session. Lee asked if there were any need for a regular meeting.
Gutierrez said that with Hutchinson's request, the members would need to decide who would participate in the dispute resolution, as well as budget discussions.
Billy Billings, representing Grant County, said the executive session should be left up to the discretion of the executive director and the attorney.
A decision was made to begin the meeting at 8 a.m. on July 7.
The meeting adjourned.