Discusses third amended JPA

By Mary Alice Murphy

Toward the beginning of the regular meeting Central Arizona Project Entity, held virtually, after the roll call and approval of the agenda, Vice Chairman Vance Lee asked for nominations for chairman of the entity.

John Sweetser, representing Luna County, nominated Billy Billings, who represents Grant County. Ty Bays, representing the Grant Soil and Water Conservation District seconded the motion.

After being chosen by acclimation, Billings accepted the position. Billings thanked Lee, who represents Hidalgo County for serving to moderate the meetings. Billings also recognized Darr Shannon, representing Hidalgo Soil and Water Conservation District, for her chairmanship of the entity for almost five years before resigning the position several months ago, due to work obligations.

Lee nominated Joe Runyan, who represents the Gila Farm Irrigation Ditch, for vice chairman. Billings seconded the nomination, and Runyan, too, was selected by acclimation.

"I look forward to working with Mr. Billings to help us move forward," Runyan said. "I'm thinking we may want to consider some sort of compensation. It's a lot of work for him."

Lee said perhaps they could figure out a way to get it done.

For secretary, John Sweetser was nominated. He, too, received a second, and was chosen by acclimation.

Sweetser accepted the nomination and the position by laughing and asking: "What does it involve?"

Lee said: "In my opinion, this is a great bunch to move this entity forward."

Next on the agenda was the Open Meetings Act. Executive Director Anthony Gutierrez said he made a few changes, mostly dates. But in the second paragraph, he noted that it said the notices of the meetings should be sent about 10 days ahead of the meeting. "Usually the newspapers put them in on the Wednesday preceding the first Tuesday of the month when the meetings are held, so I suggest changing it to seven days ahead of time."

The OMA was approved with the changes.

The meeting minutes from the last meeting were approved with the note of a typo.

No member of the public requested time for public comment.

The main topic of the meeting was the final draft of the third amendment to the joint-powers agreement between the New Mexico CAP Entity and the New Mexico Interstate Stream Commission.

Gutierrez went through all the changes, which included specific responsibilities for the second fiscal agent, as being only administrative. "We anticipate for future projects that each entity will have to have their own fiscal agent. We will have criteria in the application process to make that clear."

Another change was that "The waiver of sovereign immunity is specifically limited to the development of AWSA [Arizona Water Settlements Act] or to activities that are governed by the CUFA or the NM Unit Agreement. For all other activities undertaken, the NM CAP Entity does not waive sovereign immunity or the protection of the 11th Amendment of the Constitution, to the extent that such protections apply to the NM CAP Entity."

Runyan asked for an explanation on this change, if, for instance a project asked for funding for low-flow toilets.

NM CAP Entity Attorney Pete Domenici explained that the AWSA requires a waiver of sovereign immunity. "We did that in the original JPA. Now that we may have various other purposes that may not flow from the AWSA or development of AWSA water or a New Mexico Unit developing AWSA water, we could be viewed like any other municipal utility. In that case, we are not waiving sovereign immunity. We are making it clear that only in the case of developing AWSA water are we waiving sovereign immunity."

In answer to another question from Allen Campbell, representing the Gila Hotsprings Irrigation Association, Domenici said: "We are not removing the waiving of sovereign immunity from the JPA for AWSA projects. It's removing the waiver of sovereign immunity for non-unit projects. We will maintain sovereign immunity just like every water utility anywhere. We only waive the protection as required by the AWSA for AWSA development projects."

Howard Hutchinson, representing the San Francisco Soil and Water Conservation District, had several suggestions for changes.

He said he had addressed the issue before on the language on one of the whereases, where it said "solely for the benefit of the CAP Entity." "I always understood that the benefit accrues to the user, so I question that language.

Domenici said: "I agree with your concern. I think taking out the word solely and perhaps adding after entity 'and users' might be more accurate."

After considerable discussion among Hutchinson, Campbell, Domenici and Interstate Stream Commission Attorney Dominique Work, the decision came down to not adding any language, but taking out the word solely in two paragraphs.

Hutchinson brought up another issue when in the JPA it talked about the request the entity has made to the Secretary of the Interior for permission to plan, design and construct a New Mexico Unit. "We have requested, but it has never been granted."

Work noted the request was to own and operate. "The language here is from the AWSA, which states that the entity will automatically hold title to that unit."

Hutchinson asked if a ditch organization makes an improvement to its delivery system using New Mexico Unit funding and later decides to use AWSA water, would they have to convert title to the New Mexico CAP Entity.

Gutierrez said if it was done outside the New Mexico Unit Agreement, it would not be necessary. "Wouldn't this language saying if done under the agreement, wouldn't that allay your concern?"

"I'm just looking into the future on projects that are already on the ground or are in process," Hutchinson said.

Domenici suggested changing the language from "pursuant" to "'as part of' a New Mexico Unit component, the title will be to the New Mexico CAP Entity. If AWSA water is delivered down the line, the CAP doesn't automatically take title. I think it's only if the project is part of the New Mexico Unit that the entity would take title."

Campbell said, as the member of a ditch, "I would have trouble turning over title from what we have developed as our ditch, a rather unique right we've had forever. We have to change it, so the ditch owner has the ownership of his property."

Hutchinson said he believes the "as part of" keeps that right of ownership to the ditches.

Domenici said the ditch would contract with the Secretary of the Interior or the CAP Entity to lease the water from the head of the ditch. "I don't think that would involve ownership of the infrastructure."

Hutchinson went on to Section II: Purposes (b). "I don't see a definition of shovel-ready anywhere. Having worked on a lot of construction projects, few to none have been really shovel-ready. I have little confidence in our signing partners to adhere to what they agree to."

To laughter, Hutchinson said: "I think shovel-ready means you gave a considerable donation to a politician." And he continued. "To me shovel-ready means completed plans, environmental studies, certified engineering, permitting, compliance with OSHA and other regulations such as the Clean Water Act. I think we need a definition."

Gutierrez suggested the definition be put in the non-unit project policies and criteria.

Jim Massengill, representing the city of Deming, suggested adding to the list of items in the definition "ready to be advertised for bid."

Gutierrez said he would come up with the language for shovel-ready in the criteria for non-unit projects.

Hutchinson addressed item (e) on page 9 and noted that during 2019-20, there had been "continuous instances of representatives on the entity that frustrated the business of the entity" especially through non-attendance at meetings so that a quorum was not possible.

"I think everybody that may potentially be on board to sign this needs to participate," Hutchinson said. "I would plead with parties not to frustrate the business of the entity."

Lee asked if there should be an automatic notice to them if they do not attend.

Gutierrez pointed out that it is in the bylaws.

Hutchinson opined that they are frustrating, not just by not showing up for meetings, but through obfuscation. "I'm talking to the ISC here. That you have frustrated the business of the New Mexico CAP Entity to no end. I hope in the future that we can rebuild trust with the commission, because I don't have it now."

Gutierrez said: "While I potentially share your concern, as entity staff who has worked with ISC staff, I know they have made consistent efforts in moving a unit forward. They've been nothing but helpful."

Hutchinson agreed that the talk has been helpful, "but if there is no action, it's just talk. I would like to see talk supported by action. It comes down to the honor of the signatories. Unless we want to put in a penalty clause, which I don't want to do, we want the signatories to fulfill their obligations."

He continued with other changes he wanted considered in the document. On page 17, No. VII Ownership, the clause on ownership. "I realize this is not anything that has been added, I've had an uneasy feeling about this particular clause."

Work said when the entity was first created, "we anticipated that there would be a New Mexico Unit. This was a mechanism for the fiscal agent to own property."

Hutchinson said: "Should we become a political subdivision of the state, there is nothing to transfer."

Work replied: "If you become a subdivision of the state, this JPA is terminated."

Lee asked if the board should vote on the JPA anticipating the changes as they have been noted during the discussion.

Gutierrez said: "The only real change was the issue on shovel-ready. "I will add language that shovel-ready will be defined in the project criteria. Remember, this still has to go through each representative entity and to the ISC. It may come back with changes. I think we should go on and act."

Domenici said he thought they should define shovel-ready and say that it "shall be included in the application process for non-diversion projects developed pursuant to the paragraph."

Gutierrez said he thought the definition could be done when the board creates the criteria.

Hutchinson moved to approve the third amended JPA with changes noted. Campbell seconded it and the motion passed.

Domenici noted on the issue of the entity's request to the Secretary of Interior for design, construction and maintenance of a unit, "I think it is incumbent on us to follow up with the Secretary."

Lee asked Gutierrez and Domenici to draft a letter to that effect to the Secretary.

With no new business, the members went into executive director report and Member Roundtable. Gutierrez said he continues to speak with local elected officials and legislators, not only on the JPA, but also on the issue of the entity potentially becoming a political subdivision of the state. "There is still an interest in our area for development of water. No one wants to lose the right to develop water. I will continue to talk to those expressing interest."

Lee asked when the entity could expect the final engineering report.

"We got approval on it from the ISC," Gutierrez said. "But I have to send to the ISC the line-item transfer request, so we can pay the engineers. I should be able to get this started this week. We didn't have the money without approval of the line-item transfer."

Lee started off the Roundtable by saying he appreciated the opportunity to serve as chair of the entity. "I do want all of us to get behind the new officers and help them out. I repeat that I think they are a great team to move us forward."

Gutierrez encouraged all the members to talk to local officials about what the entity is doing and about wanting to move forward as a water authority. "We receive punches all the time. Opponents constantly want to replace us. We need you telling people what we're doing for them."

Campbell said he wanted to say that it has been a very interesting and rewarding five years working toward "a quite unselfish program. I think we have worked together very well being extremely civil. Anthony has set the gold standard, keeping us involved and asking us to get back to him. We need to work harder at getting back to him. We're not through, and we have a lot of work left to do."

Runyan said he will work with Gutierrez on the potential for compensation for the chairman. "I believe the only way for us to move forward is with aquifer storage to use AWSA water. If you want to plant a winter wheat crop in September, barring a storage unit, aquifer storage seems worth pursuing. Maybe we should have brought in other groups. Maybe we should look at Israel to get one of their consultants to look at us and maybe offer some new ideas."

Bays thanked Lee and Shannon for leading the group. He noted that George Jackson Sr. worked his whole life to develop "this water. We owe it to our forefathers and our descendants to develop this water. At first, I was opposed to compensation for the chairman. I believe it is our civic duty to serve on boards like this, but I agree compensation might be warranted and maybe even reimbursement for attending meetings in Albuquerque or Santa Fe. People who are fighting us are paid, paid well, including some who are on this call only to fight us. We need to step up our game. Joe mentioned bringing the Israelis. We need to reach out to our own community. Our farmers and ranchers know how to survive this area better than anyone. I encourage us to go out to the farmers, ranchers and irrigators to seek out new ways to do things."

Billings thanked Lee, Shannon and the members. "I appreciate your thinking of compensation. It might be a good idea for future chairmen. But per diem for travel is a good idea. I'm paid as a commissioner to do this. It's part of my job, so I don't want compensation. We had good discussions today. We have to be careful going forward. The public may have a negative perception about us. I think my biggest goal going forward is to let the public and elected officials know what we're doing."

Gutierrez said he would have a clean version of the third amended JPA fairly soon. "If each entity would like me to give a presentation, I would be willing to go and highlight the changes so your boards have a better idea of what they are approving."

Bays asked if Gutierrez would provide the entities with the document "or is it up to us as the representative?"

"Usually, the representative takes it to the entity," Gutierrez replied.

Lee noted the document should make sure changes to representatives are correct on the document. "I think there is a change in Catron County's representative. Please get that up to date so we know who the representatives and the alternates are. I encourage you to get it to your various boards. I know some haven't been participating. It may be a struggle to get them to act."

The next meeting is set for 10 a.m. Tuesday, February 2, likely once again to be held virtually.

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