By Mary Alice Murphy

With no public input and no new business, the members of the New Mexico Central Arizona Project Entity, some meeting in person, socially distanced and wearing masks, at least temporarily, and others attending on the phone, delved into the first issue under old business.

One of the three members of the entity, who attended the dispute resolution meeting on Aug. 28, Howard Hutchinson, who represents the San Francisco Soil and Water Conservation District, addressed what happened at the meeting. Others who attended were Executive Director Anthony Gutierrez and entity Attorney Pete Domenici, Jr.

Hutchinson had given handouts to the members on the issues and remedies sought by the NM CAP Entity and another handout on the results of the Aug. 28 meeting. The parties at the meeting included Hutchinson, Gutierrez and Domenici representing the NM CAP Entity. Leslie Meyers and Rod Smith of Reclamation's Solicitor's Office represented the Bureau of Reclamation, and Director Rolf Schmidt-Petersen and Attorney Dominique Work represented the Interstate Stream Commission.

"We agreed at the meeting that the only thing to be discussed was the funding agreement," Hutchinson said. "I had some objections, but we reached an agreement and resolved some of my objections."

He said they reached agreement on the sequence related to termination of the Interim Advance Funding Agreement and that the steps in the agreement were not properly executed. "We will attempt to put it back on track."

Some ISC commissioners agreed that the "Dear Reader" letter from the Department of the Interior influenced their decision to terminate funding for the completions of the NEPA process. The Dear Reader letter was part of the draft environmental impact statement. It stated that unless the parties in New Mexico could come up with funding for a "financially viable" project, "it is unlikely that an action alternative will be selected as the final agency action."

The letter said: "While the Department cannot pre-judge the outcome of a Record of Decision…, 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." It continued that a project could become "viable in the future," and "can be re-considered at that time."

Hutchinson said in the steps the ISC took to terminate the funding agreement, and in a letter to Reclamation on the steps, the ISC objected to the Dear Reader letter. But the ISC was informed that the Washington D.C. Bureau of Reclamation office had stipulated it be part of the draft EIS, and if it were not included the national office would not approve the issuance of the draft EIS.

Work said the ISC was told what the Dear Reader letter was going to say, but never received a copy of it. "We got the draft EIS and the letter was inserted in it."

Gutierrez said: "One of the questions we had was whether the joint leads, ISC and Reclamation, went through a dispute resolution. Apparently, it was taken care of at the executive level. While ISC did have some issues, it was settled by the director.

To a question from John Sweetser, representing Luna County, Hutchinson replied that no one knows from what individual the letter came, except that it was from the Department of the Interior.

In the MOU between Reclamation and the ISC, it sets the dispute resolution at the executive level, but it also states that if there were disagreements at the executive level, the CAP Entity and all parties was to be informed, according to Hutchinson. "That step did not occur. It is an issue we will continue to pursue as we go forward in the dispute resolution process, because of the memorandum of understanding not being followed."

"We have pointed out changes to agreements and MOUs that we would like to see in the future," Hutchinson said. "We were told any agreement by the ISC cannot bind any commissioners and that, if there are changes in the commissioners, agreements can be voided."

Hutchinson said his analogy was like Lucy saying she'll hold the football for Charlie Brown to kick this time, and he believes her, and she snatches it away at the end as usual. "In our case, the football keeps getting pulled away."

"But I think we had good discussions," Hutchinson continued. "I think they stayed within the standards of their respective organizations."

Allen Campbell, representing the Gila Hotsprings Irrigation Association, said to Vance Lee, representing Hidalgo County and chairing the meeting: "I have the utmost respect for Darr (Shannon, representing the Hidalgo Soil and Water Conservation District and who resigned from the chairmanship at the last meeting) and her handling of the chairmanship, so I will try not to call you Madame Chair."

Campbell said he believes the Dear Reader letter "poisoned the well. To put it out before any dispute was addressed is a true violation of the study. The Department of the Interior is not supposed to be prejudicial until the projects have been studied to their best results. I'm very uncomfortable with this agreement. I will support the negotiations, but we must be dealt with fairly. The actions we're taking seem consistent with this crazy year, with the virus and political malfeasance everywhere. We have to be very thoughtful and careful."

Lee said he had confidence "in our team to cover us in any way they can."

Hutchinson said the agreement reached at the Aug. 28 meeting, said the resolution of the dispute will include the opportunity for the Entity to summarize the unresolved issues related to the draft EIS. "That discussion centered around what Mr. Campbell was just talking about. The fact is that the Dear Reader letter may have been appropriate in a record of decision, but not until our comments and answers to our comments for the draft EIS were considered. The Dear Reader letter was simply not appropriate to be included in the draft EIS. I'm not sure what the Phoenix Office of Reclamation thought, but Washington wanted it in."

He noted that, when he does planning, he includes cost benefit. "We all do in our work. But if all the figures are wrong, it doesn't pencil out, especially if the estimates are inflated as these [in the draft EIS] were. But the parties agreed that our summary will be attached to Reclamation's concluding report at the end of the closeout process. This report will be part of the administrative file and could be a blueprint for 'lessons learned' for future endeavors."

Hutchinson said No. 6 in the agreement said the ISC has indicated its commissioners want to support the southwest New Mexico four-county region, protect the 14,000 acre-feet of water as allocated to the region by the Arizona Water Settlements Act and want to help local community ditches. "The majority of the commissioners expressed this point that they do want to see the 14,000 acre-feet of water for this area. I think Reclamation has also expressed that they want the 14,000 acre-feet to remain available to utilize."

In No. 7, the parties agreed to follow the provisions of the funding agreement closeout. "During 14 days, the timeline will be laid out and we'll get early estimates for Reclamation's activities in the closeout," Hutchinson said.

No. 8 indicates the parties will follow the provision of the funding agreement to provide the administrative file to the Entity and the joint leads (ISC and Reclamation) will make all technical information available to the Entity, as well. "This is important so in the future when we want to tackle other projects, we will have the technical information."

In No. 9 of the agreement, reached to this point, the Entity is concerned with the ISC's initial emphasis on funding the completion of the NEPA process for the New Mexico Unit and the subsequent change in the position of the ISC. "It evolved out of agreements that subsequent commissioners didn't follow," Hutchinson explained.

No. 10 addressed items 2 and 4 of the CAP Entity "Issues and Remedies Sought," with item 3 outside the scope of the dispute resolution and some issues under items 1 and 5 that will be resolved when the sequencing and costs of the close-out are determined.

Items 2 and 4 will be covered in the final dispute resolution including the remedies the entity is seeking. No. 3 of the entity's issues and remedies may require legal or legislative interpretation on the expenditures of the New Mexico Unit and how they are distributed.

No. 11 in the preliminary dispute resolution agreement stresses that the NM CAP Entity did not initiate the termination of the funding agreement, and No. 12 states the parties agree to the termination of the funding agreement and that the ISC will issue the notice of termination.

"Before it is issued, we will have a discussion to ensure that we meet the timelines after the dispute resolution and notice of termination are issued," Hutchinson concluded and said he would take questions.

Ty Bays, representing the Grant Soil and Water Conservation District asked how long the process would take.

Hutchinson said the notice of termination kicks off a 14-day period of discussion. "We hope to reduce that time. Following that is a 21-day period during which the closeout has to begin."

Campbell said he adamantly opposes Nos. 6 and 9. "I don't see how the commissioners want to protect the 14,000 acre-feet. They haven't acted like it so far.

Lee agreed: "If they want to do it, why not do it without all the barriers?"

Campbell said he doesn't want No. 6 to be included.

Hutchinson said that was why No. 9 is in there questioning the change in position of the commission.

"We also talked about the money Reclamation has previously banked to complete the NEPA process," Hutchinson said. "It's about $240,000. We discussed Section 2:12 in the AWSA which says they 'shall complete the NEPA process and the ISC can become a joint lead agency. Anthony, at the meeting, brought up that we may want to have Reclamation come up with an analysis of the public comments and that the NEPA process should be completed by the Bureau of Reclamation, with no provision that the ISC will be a joint lead."

Work agreed that was a proper explanation.

Hutchinson said the parties agreed going into the process that discussions that they didn't fully come into agreement on would not be discussed outside of the meeting. "We have upheld that agreement and I believe the ISC and BoR are also upholding that." Work again agreed.

"There are issues still sitting on the table," Hutchinson said. "Hopefully we will be able to reach some accord."

Lee asked when the next date to meet would be.

Work replied that the entities wanted to allow time for the NM CAP team to present to its members. "Once we initiate the notice of termination, we have 14 days ahead of the issuance. We have not set the next meeting."

Lee asked how long the process would take.

Work said she didn't expect it to be long. The NEPA contractor's contract is only until the end of December. "We must make sure to finish the closeout. We hope to get it wrapped up in October."

Hutchinson said he would hope the entity can get a motion to approve the process as conducted to this point and to approve the agreements made at the Aug. 28 meeting. "I ask the board member to let Anthony know of any issues you want included in the final report."

Hutchinson moved to accept the agreements completed at the Aug. 28 meeting. It was seconded.

Gutierrez noted that representatives from ISC and Reclamation, "while they may not have agreed with us, did entertain and listen to us and our issues. The ISC notice to terminate was done prior to the analysis of the public comments for the draft EIS, especially our comments on the economic analyses and the Dear Reader letter. I tried to semi-quote Commissioner Hammond's comment to end the ISC's role in the NEPA process. He mentioned the difficulty of ag water at current exchange costs, the Dear Reader letter and asked why the ISC should continue if Alternative A would be the decision. We sought to deem it as pre-decisional to the record of decision before the EIS was completed. We had a lot of discussion and not a lot of push-back. As for the commissioners supporting the 14,000 acre-feet, I think it's important that they support it. I think they recognize this water is important to New Mexico."

Lee said his problem is that development of the 14,000 acre-feet of water is reliant on the completion of the NEPA, "and if they want this water to remain in New Mexico, why didn't they want us to complete the NEPA? That's the real problem here."

Gutierrez said he thought it had to do with the financial viability of a project "if we didn't have anyone in line to purchase the water. It's a chicken and egg thing. I don't think the no-action alternative would have been beneficial."

He went on to say that the entity realizes there are issues with the push up dams and the environmental impact of putting machinery in the river and so do several members of the ISC. "But the water doesn't go away, and we want to ensure this body doesn't go away, and potentially this AWSA water can still be developed."

"This is a question I should have asked a long time ago," Hutchinson said. "Anthony or maybe Dominque would have an answer. The ISC in the planned project funding, they were being asked to fund about $600,000. I wonder if the commissioners understood that there was already this $240,000 in the BoR bank and they were only going to be asking for around $400,000 to complete the NEPA and the other environmental compliance?"

Gutierrez said the request was over and above. The biannual funding would go to the end of 2021. "Any funding would also carry over, so it would have been more than was already in BoR's existing account."

Marcos Mendiola, ISC non-voting representative on the CAP Entity, said the ISC is aware that there is still funding that can be used. "When the budget is approved for them, we have to wire them the funding. BoR didn't want any more funding from us, but if they didn't get the funding before July 1, they would have to stop the process."

Hutchinson said it didn't really answer the question because "I looked at the budget from BoR, and if the ISC had approved it, it would have been close to $900,000 to finish the environmental compliance. So, I'm confused."

Mendiola said the ISC does a biannual plan every year, and Reclamation "gives us estimates for the next two years. We forward the money to complete the annual plan, the surplus that wasn't expended carries over and we provide additional for the second year. They didn't expend all the 2020 money, but the ISC voted to stop the process for fiscal year 2021, so there is surplus sitting at the BoR."

Work said she thinks the answer to Hutchinson's question is that the difference to the $630,000 or whatever was the amount Reclamation requested, the ISC would have provided to the Bureau of Reclamation the difference between the $630,000 and the $240,000 they have on hand.

Mendiola said it was correct.

Hutchinson said he had a second motion. Lee noted that the first one had not been acted upon.

Campbell is to accept the principle "we are operating on right now. This is not a final document, correct? This is a draft?"

Gutierrez said the motion is to approve the sheet of items agreed upon by the parties, but more items are to be resolved. Some will happen during the closeout.

"I have heartache on the item of the ISC supporting the 14,000 acre-feet," Campbell said. "Because that is grossly inaccurate. Just strike that. The ISC owns their activity, and I'll be damned if I'll let them get away with stabbing me and telling me they didn't."

Billy Billings, representing Grant County, asked Campbell what good it would do to strike it other than get them to admit they don't really mean that. "It looks like to me it would benefit us. I don't see what you would accomplish by striking that."

Campbell said when someone does something wrong, they own it. "I don't want ownership of this. To approve this gives me ownership. It's a very nebulous thing, but integrity is very, very important when we're working. Let's stick with the truth."

Sweetser said: "If they say that, let's hold them to it."

"We're standing on the deck of the Missouri in Tokyo harbor," which didn't sink, Campbell agreed. "So, we may as well accept this. I'm trying to salvage what we can; I'm trying to help the farming community. I want to use this money for the benefit of the four counties to stop further degrading of the aquifer."

Lee said what he liked about No. 6, is that it acknowledges "we still have the 14,000 acre-feet available."

Campbell said: "If we stay on high ground, we can go back to Congress. I think this document will hurt us in a different time."

Hutchinson said the idea behind No. 6 is that "those of us who were watching the meeting when the ISC was deliberating its decision not to provide more funding, I don't believe I heard any commissioner say they wished to relinquish the 14,000 acre-feet of water and a number of them expressed that they wanted to retain the 14,000 acre-feet. I agree that their actions don't always follow what they say. We need to hold their feet to the fire. Its subject matter will be continued in discussions. I'm a bulldog, when I latch onto an issue."

Billings said he believed it would be a detriment to the entity to reject No. 6.

Sweetser asked if the statement on retention of the water is in the minutes of the ISC meeting, and Work said it is in the minutes.

The agreement was approved, with no nays heard.

Bays questioned the language "reasonably consider in the next document" of issues partially addressed.

Hutchinson said it is a definition from a legal dictionary. "When the attorneys write this language, it allows them to have two parties arguing before a judge. I think we can argue that we were not reasonably considered nor did they take into account the reasonable comments of the entity when they made these decisions. And they need to do so in the future."

"I think they overused the word reasonable, but I accept your reasonable discussion on this," Bays said to chuckles from the members.

The second motion by Hutchinson was that the entity support going forward in the dispute resolution to discuss the issues partially addressed or found outside the scope of the dispute resolution process following the Aug. 28 dispute resolution meeting. It was seconded.

Billings asked who wrote the four-page document titled "issues partially addressed or found outside the scope of the dispute resolution process following the Aug. 28 dispute resolution meeting."

Hutchinson said she did, but Work corrected his spelling and grammar. Mr. Domenici had a copy, "and I didn't hear back from him. This is taken in context and verbatim from the original document 'Issues and remedies sought,' which did go through review by Mr. Domenici, as well as through Anthony, the ISC and BoR."

The document and procedure were approved.

Hutchinson said that concluded his reporting.

The next article will cover the discussion on potential changes to the JPA between the entity and ISC.

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