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Published: 11 October 2020 11 October 2020

By Mary Alice Murphy

The New Mexico Central Arizona Project Entity met in a face-to-face session with several on the telephone on Oct. 6, 2020.

With a quorum determined and no public input, Entity Executive Director Anthony Gutierrez addressed the first item of old business. "I sent everyone a draft of the concluding summary that will be attached to the environmental impact statement upon the termination of the NEPA (National Environmental Policy Act) process. The first part has to do with the comments that we made on the EIS during public comment but were never addressed by the joint leads, the U.S. Bureau of Reclamation and the Interstate Stream Commission, and includes the Dear Reader letter, which was attached to Volume 1 of the EIS, the planning process and timelines and positive and negative outcomes."

He noted in the draft that the Entity felt that the narrative mainly focused on the negative impacts of a potential diversion, even though there were significant positive impacts, especially as compared to Alternative A, which would have been the no-action alternative.

The document reads: "… the analysis in Appendix I, 'Draft Principles, Requirements and Guidelines based analysis of the New Mexico Unit of the Central Arizona Project' (PR&G), in particular, fail to recognize that in the western United States, water always has exponential benefit. … [Whatever its usage] water demand has increased due to population growth, over usage and extended periods of drought. Yet the Draft EIS and the PR&G mainly focus on negative impacts related to diversion, storage and usage of this same water in Southwest New Mexico."

"On page 2, we highlighted what we felt were the major issues with the Draft EIS," Gutierrez continued. "We mentioned the draft EIS was confusing with lots of attachments because of the executive order to the Secretary of Interior's office to limit the size of the EIS. We felt there was a lack of positive impact analysis with existing baseline conditions, lack of project area specifics in the economic analysis, which impacts the cost-benefit ratio. The general assumptions on pasture land were based on nationwide usage of pastureland, which is primarily to grow hay, not as used in the Gila and San Francisco areas, as grazing to grow cattle, assumptions made for primary use of AWSA (Arizona Water Settlements Act) water and a question of inconsistent baseline data concerning the economic value of regional water rights and does not recognize AWSA water as supplemental to existing practices, as we laid out in our NM CAP Entity Business Plan."

He noted in the economic assumptions: "Even the regional data was not specific to the Gila, San Francisco and Virden usages of water. They took some data from the Rio Grande and the San Juan and some from Arizona rivers. The EIS was based solely on the agricultural value, and not taking into account what the land and water is actually used for, nor taking into consideration future municipal or industrial needs.

The second portion had to do with the Dear Reader letter, which came from the Department of the Interior and stated that if parties in New Mexico did not "secure project funding commitments that made an action alternative financially viable to the end water users, it is unlikely that an action alternative will be selected as the final agency action." The letter imposed an artificial unsupportable deadline for obtaining funding for the construction of the New Mexico Unit, Gutierrez pointed out.

The entity comments submitted to the administrative record included extensive comment on the Dear Reader letter, saying there was no basis for the requirement that the entity obtain funding prior to the end of calendar year 2020, and that the requirement was illegal, violated the intent and purpose of the NEPA and was a pre-judgement of the outcome of the NEPA process.

"We also had some description of the planning process all the way back to the beginning," Gutierrez said. "The decision from ISC came at the last day available for the Secretary of Interior to give notice of the intent of the state to develop the water. It also lists some of the time constraints we had leading up to 2019. We also mention some issues potentially with the ISC being a joint lead of the NEPA, as well as being the fiscal agent for the New Mexico CAP Entity. And the development of our initial preliminary design of a New Mexico Unit, which was created by AECOM, contracted by the Interstate Stream Commission, and not by the NM CAP Entity. Later, we had to hire our own engineer and move through the process at our own schedule, and by then we were pretty behind schedule, which potentially caused some issues in costs, which were outside our budgeted amount. As the proponent of a Unit, we should have been able to contract for the entire engineering and design amount, instead of having to apply annually for budgeted amounts so we could continue our engineering analysis and NEPA support. It was difficult because our budget was reduced every year and therefore we had to shift moneys every year; we had to get pretty creative on how we were going to pay for the analysis to support the NEPA and then in the end, the ISC terminated the process as fiscal agent."

He noted there were some positive outcomes, in spite of all the negative aspects of the NEPA process. "We now have all the data on the Gila and San Francisco rivers. There has been substantial scientific analysis related to availability of water, biological impacts, impacts to downstream users, impacts to endangered species and issues related to economic analysis, and we have the data on cropping patterns and value-added crops that was developed. All of that data will remain available. All the engineering data will be made available to us."

"Engineering analysis on existing infrastructure as well as placement of new infrastructure will be available," Gutierrez said. "There is also some initial analysis done on commercial wells, as well as underground storage and recovery."

The statement reads: "The analyses and the draft EIS clearly show that Gila and San Francisco AWSA water can be developed with minimal impacts. It also shows the positive impacts associated with permanent diversions related to fish passage as well as having the ability to regulate diversion amounts while maintaining downstream flows. The analysis also shows that return flows from storage provide benefit during the dry season."

Gutierrez said: "There are some positive comments toward the end that although the Draft EIS showed a negative cost-benefit ratio, we felt there is profitability in developing AWSA water as supplemental water in combination with high-value crops and efficient delivery methods. We also feel that the DEIS high operations, maintenance and replacement costs could significantly be reduced by utilizing existing operations. For the concluding comments, I thought we can get some more comments from entity members. In our conclusion, we will reference our comments and those from the San Francisco Soil and Water Conservation District."

He said the schedule for the final close-out would be set in a meeting that afternoon. "I left space for our comments about the EIS, concerns about the process, the positive outcomes. I would like to conclude that we want to leave it ready for someone to pick up the ball and run with it."

Vice Chairman Vance Lee, representing Hidalgo County and was running the meeting, said he liked the letter and was glad that it was more general and not too specific.

Ty Bays, representing the Grant Soil and Water Conservation District, said he has seen some politicians use the phrase "This water is too expensive."

"I disagree," he continued. "Existing water rights are worth $10,000 to $12,000 an acre-foot. When we got the water, I thought it would have been an attractive alternative to a beginning or small farmers to lease the water rights for $150- $250 an acre foot. It would be attractive to them not to have to put out all the capital, if you can even find them for sale, and to buy water rights. I think the comment was certainly not addressed in the EIS, but I think it should be in the comments. Not developing this water has eliminated a whole class of entrepreneurs and knocked them out of the picture. Everybody talks about reaching out to the disadvantaged and poor and this could have benefitted them. It didn't have to be agriculture, it could be someone with a small business idea that needs water. If the town of Silver City needed to buy some extra water rights, that's real money and it would have been passed on to the users. They'd probably tell us they don't need more water. Some day they may change their mind."

Lee asked how much in acre-feet of water a one-acre water right would give someone. Bays said it provides a 2.9 acre consumptive use in the Gila Valley, with an actual use of 1.6. A diversion right would be less in the upper part of the river and more down in the Virden area with a longer growing season.

"I like the tone of this letter," Allen Campbell, representing the Gila Hotsprings Irrigation Association, said. "We're not being shrill. I look at this document as should be construed by us in our design as something that will help us secure additional water in the future. Because the Arizona Water Settlements Act is not sunsetting. We need to maintain that posture, that we are still entitled, we still have a claim on the 14,000 acre-feet. There were a lot of mistakes made in a lot of directions. The members of this CAP Entity, we were facing an uphill battle, because we had no political capital to spend. This was done by not being able to do Hooker or Conner Dam, there was not the political capital. Things will change in the future. This harvested water that we have is perpetual, as long as it rains and is our only permanent water. We are mining water in place, and someday we're going to reach too deep to pump or reach high saline levels. Eventually we are going to run out. The AWSA water is a game changer. We fought a battle; we did not prevail, but justice will prevail and give us the water from the Gila."

He also noted that his organization is the Gila Hotsprings (one word) Irrigation Association.

B.J. Agnew, representing the Upper Gila Irrigation Association, noted that all the irrigators are associations.

Howard Hutchinson, representing the San Francisco Soil and Water Conservation District said he thought the statement was well crafted. "In reading and rereading it, I kept thinking something was missing. I would like to see all future agreements be crafted to require parties to adhere to the agreements made with other parties. We, the New Mexico CAP Entity adhered to our agreements, but the other parties didn't. We have to keep our focus on getting this water. I have my check book. I'll pay right now for several years of water. I would love to have more water on the few acres I have. When I put this water on my land, it increases my property value immediately as soon as I put that water to beneficial use. I think a lot of people in the area can say they'd like to do the same thing, but we cannot do that if parties don't adhere to their agreements that they enter into. We also need political change. We don't have to address it here, but it is directed at the NEPA process. I agree with Anthony that we need to footnote each section to show where it is in the Draft EIS."

Lee had a follow up. "I remember a comment very recently that the present Interstate Stream Commission doesn't have to adhere to everything the former commission set forward. That keeps coming up in my mind. When do we have a difference in the Interstate Stream Commission? When one person changes? Is that a different commission?"

Hutchinson said the way it was explained to him, it doesn't have to be a change of person. "The members can simply change their minds. Say they decide they should be sending more water to Texas. What will it do to those on the Pecos and Rio Grande? It should be a frightening thought. I can't imagine that New Mexico, as the driest state, would be willing to give up a drop of water. If we continue into a mega-drought, Arizona will come to us and beg us to create storage at a high altitude so Arizona will still have water, rather than seeing it evaporate in their low-level reservoirs. The state of Arizona loses a lot of water to evaporation. I can see a future where high elevation water is something people will clamor for."

Van "Bucky" Allred, representing Catron County, said he thought it was a good document. "I agree with all of them about future water. A person who had left the Bureau of Reclamation because of bureaucratic frustrations, one of the first things he said to me was the AWSA water was too expensive to develop and this was a few years back. A couple of years back we got a document that showed higher-value crops using the water would bring us more revenue. In a heartbeat, I would buy AWSA water to improve my land and provide crops or graze livestock. I believed that the only way I could do that was to drill wells. It was my understanding that the cost of that well, the cost of metering that well would be on the individual. It costs the taxpayers nothing, not even to monitor it. I still believe AWSA water would yield, at the least, a break-even crop. I know a lot of folks who would buy this water for tanks, which benefit cattle, wildlife and endangered species. I'm going away, but the other thing, I would take away from all this, I would tell the new board members not to get outside the rules and the regs, but do go in the direction to develop this water. Hang on to this water. I believe that having the water in the future will bring the funding. It will be worth someone's time and money to develop high-elevation storage and to benefit from this water for county governments and cities. I came here, not as an engineer or scientist. I came as all of us as a volunteer and from the beginning people were wanting to torpedo every idea. The mindset of that former BoR member that the water is too expensive. A past director of the ISC had the audacity to lie to this board to derail the process. Future board members have to adhere to the rules. Try to come together and work together. Those people with the signs we have to cross. They have no business in this room because they have taken money from this board and it will be used foolishly. They've taken money from hard-working people who did have a stake in all of this to develop this water. Do what you want to do. This old man has been kicked around. Anthony, when you talk to those people this afternoon, have an element of push in your voice. They work for us. Both of those agencies work for the people, and this water development could be a great thing for this area."

Lee said people say the water is too expensive, but "the river's been dry down our way since late May, with the exception of a few trickles here and there. This water is not too expensive, when you don't have any. Turn on the faucet and if no water is coming out, you will pay what you must to get it."

Campbell said traditional agriculture has taken a hit in this state administration. "The ISC was our strongest proponent. Now it's strictly an urban outlook. It's incongruent behavior that this Interstate Stream Commission has so flipped. It's almost like law enforcement protecting the criminals. This is a flip that is so strange and so political; I have a hard time wrapping my mind around it. I would like to talk about the cost of water. I have a lot of water rights, including a lot of non-consumptive hot water. I have a good number of rights adjudicated as consumptive and tied to the hot springs with no specific use. It was a real benefit to us. I have taken two acres that is flood plain and turned it into a campground. And this consumptive use of less than 1/20th of an acre foot is grossing $70,000 a year. That is value, because we have hot pools that I lose just a little bit to evaporation. That is some of the values of water. I also get enormous value of letting about half a mile of our property that is delivering water to Arizona from my river. We have created with this small amount of water much greater amount of returns than what we are getting from our irrigated fields. What I'm thinking is that the Cliff-Gila area has the same potential I do to do tourism, if the person is comfortable with doing that. The value of the water is dependent on what it is used for. If it goes into a martini, it's damn valuable. The biggest mistake we had was that we had nobody but ivory-towered people, non-ranchers, non-farmers making the decisions as to what the value was. And they never asked us, because we didn't have letters after our names. They didn't want us to have this water."

Hutchinson said on the San Francisco that about 80 percent of the river is dry bottom, with a little bit at Alma. "It's dry all the way down to Centerfire Creek, where it probably trickles in bedrock and there's a trickle where the Negrito comes in."

Gutierrez agreed with the upper elevation storage being a good idea. "I gave a presentation to the Grant County Commissioners a couple of months back. One thing I pointed out was that the Gila River that week had a flow of 25 cfs (cubic feet per second) and there was still 160,000 acre-feet stored in San Carlos Reservoir. That's how much water runs by. I would like to mention that a lot of the ISC members do support agriculture and rural communities. Not all of them, of course, and it's very political, but I think we need to appeal to those members to assist us in moving projects forward. I think several of the members, in their comments before the announcement of the termination of the agreement, mentioned the necessity for advanced infrastructure and to improve efficiencies in our agricultural activities. So, while it's a shame that the process was stopped, there are some members who are whole-heartedly involved in acequias, ditch associations and agricultural communities."

Campbell said: "I agree entirely with you. I've had meetings with ISC commissioners. That is the incongruent situation. This is odd. I know the rank and file of the ISC wants to support agriculture. But they need to be put on notice that this action is a deviation from what they should be doing."

Hutchinson said: "As we've been going back and forth with the ISC and the BoR and seeing the amount of money allocated to be spent on the NEPA process and looking for the budget requests by the ISC at the legislative session and then looking at the money that the BoR still has, I see they could have easily finished the NEPA. All it took was for the ISC to approve the money. There would have hardly been any more out of the Unit Fund. I think the members of the ISC thought like we did that we needed to come up with more money to complete the NEPA. I don't know how we craft this, but it's something that needs to be brought forward. Compared to what has already been invested, it wasn't much.

Lee said he didn't remember the exact figures, but he remembers about $4.5 million going to the BoR and about $650,000 more was needed. "So now, we just sort of lose the $4.5 million."

Hutchinson said the BoR still has about $240,000 in the NEPA process fund, so it would have been a little over $400,000 more.

Lee asked that the final draft be sent to the members to review.

Allred said to Gutierrez. "Thank you for all your work on this. I've seen your frustrations. I'm grateful for the ISC members that see that we need their support on the acequias. They are very different throughout the region. Do we continue to push up dams? If we had a diversion dam and it was washed out in a flood, how long would it take to replace? One last thought, if I was an ISC member and there was something with the capacity of the AWSA water, I'd get myself down here, talk to the people and look hard. I would see that as my responsibility to know, whether it's the Gila River, the Pecos River or the Canadian or wherever. If I was making a decision for somebody in Taos, I would go there and make sure I understood what those folks are trying to do. Somehow, include that message in the document."

Gutierrez said he would complete the document.

Item B was discussion on the joint-powers agreement.

"We haven't created a draft, but I have met with the ISC and a couple of times with Lorraine (Hollingsworth of Domenici's firm) and Pete (Domenici, the NM CAP Entity attorney)," Gutierrez said. "While I was focusing on potentially changing the priorities of the JPA, what I took away from last meeting is the reason the New Mexico CAP Entity exists is to develop AWSA water. That's why the Arizona Water Settlements Act exists—to develop the water for New Mexico. So, while we're not necessarily resetting priorities, what we're trying to do is make the joint-powers agreement, so that all aspects of the AWSA language and all actions that have been taken by this board are all equal in the document. There are several places where developing the water is the priority, while locking in the Secretary of Interior's decision.

"I think we're cleaning up the document to show that while we may change the direction for the New Mexico Unit Fund and how it will be spent, the priorities of this board don't necessarily have to change," he continued. "Although we can put equal weight on other water utilization alternatives, we don't want the document to say that we don't want to develop the AWSA water, because I think development of the water is still our priority. We are changing some language and moving things around, as well as taking some language out of things I think we've already done. For instance, we've already signed the New Mexico Unit Agreement. I did receive some comments from people to change the structure of the New Mexico CAP Entity. While there are other stakeholders—other political subdivisions in our area have always been invited to join. We'll try to change the language, so they don't feel there is any kind of obligation, especially financial obligation. We will stress that a little bit more, but overall, I think we will try to change the focus not just on a New Mexico Unit, but to offer a broader range of projects. We still want to make all aspects of the AWSA water available to this board and speak about criteria for other projects. Howard had a comment about spending the money in the two basins. I think that was echoed by some of the ISC members that developing the projects in the two basins should be a priority. I think we can do projects to make the usage of water more efficient and use NM Unit Fund to do that."

He said those special interest groups who are saying that we are keeping the money hostage, "we will be making the language more friendly and see if we can't come up with a happy medium. We've worked on about half the document. Hopefully, we'll have a draft to send to you before our next meeting."

Hutchinson said he appreciated Gutierrez looking at a JPA revision. "I don't really want to go through that process again. At the past two legislative session, we've tried to become a regional authority, a political subdivision. It can open us up to a vast amount of funding opportunities. The JPA is limiting. I think to get a political subdivision approved, we need to get Silver City as part of the entity. I don't understand where they view it as an intimidation. Having a regional authority that umbrellas all the political divisions in the area, all the small and big and municipalities, counties, irrigation associations and soil and water conservation districts brings together all kinds of funding capacity The JPA gives us two fiscal agents that we have to fund, gives us two offices we have to fund, it's basically unnecessary overhead. A regional authority would be a political subdivision of the state and that is a huge advantage, both at the federal level for grants, and state level funding. All of those things become more accessible to us in the region. If we can convince Silver City and some other municipalities, I think we can get it passed. Rather than spinning our wheels trying to craft a joint-powers agreement, which will leave out Silver City, because they probably won't want to join and may even leave out Grant County, because they may not want to remain a part of the JPA, and then going through all the time and effort. By the time we get a draft out and each member has to go back to their entities for approval, we'll be well into the legislative session anyway. I think we should direct some effort to getting that regional authority to be recognized and get the political support to have it go into effect. It's not until all of our political entities in this region are united that we are going to see any benefits coming to the citizens."

Domenici, who was attending by phone said he agreed with Hutchinson. "A political subdivision brings a lot of benefits. I think there is a risk of going to the session without having made a good effort on trying to modify the JPA. I agree we need to elevate and put some effort and strategy into the political subdivision path, but I think we do need to continue on the amendment of the JPA path, too, because that's what the ISC is looking for and that's what people are looking at the ISC to make sure we are moving forward with the amendments. We shouldn't be abandoning the JPA, but we should move the political subdivision to a higher emphasis, while continuing progress on the JPA. That's my suggestion."

Lee asked what strategy Domenici would suggest for the entity to push forward the political subdivision idea.

Domenici said he would ask Gutierrez and Hutchinson to work on it. "I think Anthony has already been in discussions with Grant County and Silver City. I think those should continue and possibly be a little more formalized so they could make some suggestions toward the idea of a political subdivision, so they could be on board. Legislative outreach is also important, so it's not at the last minute."

Campbell said: "Anthony and Pete are absolutely right. Silver City was invited to join the JPA, buy didn't because the orientation of the JPA was toward a diversion. This might be a silver lining that will make it more politically palatable for Silver City if we're showing that we want to use the money toward other projects. I think it's a good idea for Anthony to be the front person."

Gutierrez noted that he spent 20 years in local governments. "I know most of the players. I think the only issue I see is having a regional board without a weighting of the membership may be an issue. For instance, Grant County represents 30,000 people and Silver City, 10,000 people. And here we have an irrigation association with the same voting capacity as someone who represents a whole county. So, that's the only issue I see. There may be a work around, but I think it's a fear at times that some priorities of the municipalities are not the same as for the agricultural community. How you work those things out to be able to come to decisions that don't affect the other may be a challenge. Ultimately, what we see now… I've already been contacted by some asking me when New Mexico Fund money will be available for projects. It's all about the dollar. All the funding mechanisms that Howard is talking about are all extremely competitive and then there are other ones for ag and municipalities. I think it will be a challenge to put together something that is acceptable to all the players, but I'm certainly willing to sit down and have a lot of conversations. The Southwest New Mexico Council of Governments might be the best venue for the discussions. The COG is often the fiscal agent for smaller entities."

Lee encouraged Gutierrez to pursue this path. "I wouldn't, however, be amenable to weighted voting."

Gutierrez said it had been done in other areas.

Campbell said that the smallness of an individual that wants more authority because he thinks he is more important is a horrible human weakness. "If we all work together without worrying about how important 'I am,' we can succeed. There are people who are powerful because they consider other people."

Allred: "Hard road to walk on. I have a question. We talk about weighted situations. How will this fit on the San Francisco and Catron County? I'm watching what is happening with the forest. They are wanting to start up the timber industry, which will need water. Catron County sits on two beds of ore, coal and a silver and gold bed that might someday become an issue. Also, for our county government to store water. How would you look at that?"

"That's one of the challenges we have to look at," Gutierrez said. "The AWSA includes the four counties. We include two basins, a huge amount of land, four counties, several municipalities and we have mentioned the lack of water. We are seeing a huge issue in the Mimbres Basin. We had a regional water project for Hurley. Everything was there, except for the water. I think about Catron and Hidalgo because of their smaller populations. The lower the population, the lower the benefit. I think the COG can help. Priscilla (Lucero, Southwest New Mexico Council of Governments executive director) is an intelligent woman."

"Priscilla is our guardian angel," Allred said. "To come back to storage water at high altitude. We've been under the gun from environmentalists taking away our industries. I think the rest of the state can appreciate that Catron County can hold our own. We can lock in on our own water."

Bays said he agrees with everything he has heard. "I'm seeing some candidates saying this board is not fair. It's that they want the money for their own purposes. Everyone here is elected. Maybe we are not representing the Center for Biological Diversity or the Gila Resource Information Project, but we're elected. My point is they've all had their opportunity to be represented."

Lee noted that the board is at the point of having ideas to amend the JPA.

In the members Roundtable, Lee said he thought heading into next year, the membership should purge those who have missed three or more meetings in a row. "Santa Clara has missed several, as has Lordsburg. Maybe we can send them a letter telling them they are still a member, but they need to participate or be purged."

Hutchinson reported about a recent court decision on Indian and federal reserve water rights. "Some things on the legal side, we need to be aware of. They involve Spanish water law, Mexican water law and transition to federal presence and statehood. It's a rather exhaustive history and a pretty reasoned decision by the judge. I was very interested in reading it. Spanish water law, Mexican water law and reserve water for tribal and federal agencies."

Discussion ensued on when to hold the next meeting, as the regular meeting date would fall on Election Day. The decision was to meet on Nov. 12, pending availability of the Grant County Administration Center.