Hears presentation and approves resolutions
By Mary Alice Murphy
After the New Mexico Central Arizona Project Entity determined a quorum and members approved the day’s agenda at the special meeting on Feb. 10, 2021, they heard from Interstate Stream Commission Director Rolf Schmidt-Petersen.
“We believe that it is premature for you to bring an amended JPA (joint-powers agreement) right now,” Schmidt-Petersen said. “We have a lot of things that we, as staff, need to talk about to the ISC board and the entity staff with all the items in front of us, so as not to have to modify again. I appreciate your Executive Director Anthony Gutierrez, your attorney Pete Domenici, Howard Hutchinson (representing the San Francisco Soil and Water Conservation District) and others that have been working with our staff on things, especially the non-unit items. So here are the difficulties I see. They stem from the dual roles in the Arizona Water Settlements Act for the entity. There is the plan and design role, the particular CAP Entity role, and then there’s the consulting role of the entity with the ISC, which is the successor role of the Southwest New Mexico Water Study Group.
"When I last spoke to Mr. Gutierrez and we looked at the JPA, it still seemed too focused on building a New Mexico Unit, and I don’t think that would be considered favorably by the commission," Schmidt-Petersen continued. "The primary reason is because the New Mexico CAP Entity name seems to some people to still be too geared toward a New Mexico Unit and that comes from the AWSA itself. That’s causing a lot of confusion on the roles going forward. I get a lot of calls on that, and I’m sorry I wasn’t able to relate that position to the entity earlier. I thought I should do that before you move forward to your individual decision-making entities. I think we should move forward with the consulting role, as the successor to the water study group. It would allow us to continue to fund the entity. If we can have a discussion and refocus the group as a consulting group and as a local authority to provide help to local entities for projects to make them shovel-ready,we know there is a need.”
Schmidt-Petersen noted that in a previous meeting, some of the members had asked ISC Attorney Dominique Work about the guidelines for projects the agency is working on. “Some of you may not know that in the ISC, we also have a role in helping with funding acequia and community ditch water projects. We have a specific fund for that called the Acequia and Community Ditch Infrastructure Fund. We need guidelines on how to use this fund. We think it would make sense for us to finalize our guidelines and have these documents side-by-side with the JPA to refine both of the documents. I’m not suggesting changes to the JPA at this time. I know you’ve submitted some, but I haven’t had a chance to look at them. In that regard, it’s up to you to make that decision whether to wait for our guidelines. It’s kind of the framework we’re looking at.”
He also gave a briefing on what the ISC gave as information to the legislative council. “The first part is the winding down of the NEPA process on a New Mexico Unit. I think the Bureau of Reclamation still has to close out some items from the termination of the MOU and the agreements and refund some unspent funding to the ISC. We got support from our commissioners to proceed with the Hurley water project. We also support efforts that farmers in the Gila and San Francisco valleys are working on to replace earthen push up dams. We will continue to evaluate the risks to protect the Virden Valley farms from the litigation in Arizona. We will have all the modeling pieces and assumptions on the Virden Valley project in case we decide to move forward with it. We have a request in our fiscal year 2022 budget for $705,000 from the New Mexico Unit Fund for our efforts in southwest New Mexico. That includes funding for the ISC and potentially for the New Mexico CAP Entity operating budget in that role outlined above. The state engineer and I presented yesterday to the House Finance Committee on our budget and they approved the Legislative Finance Committee budget, which has these dollars in it.”
NM CAP Entity Chair Billy Billings, who represents Grant County on the board, asked how Schmidt-Petersen envisioned development of the guidelines, including the parties who will be involved, as well as a timeline.
Schmidt-Petersen said realistically, with the legislative session continuing, “we should have a draft that we can circulate to the NM CAP Entity by early March. The draft as we’ve envisioned it has the idea of the goal for the CAP Entity to work with other parties in the region to identify and to aid parties to have shovel-ready projects. We know there is a big obligation for money to help these parties. But from the standpoint of the ISC, that help would be very valuable to us to not have that done internally in Santa Fe and we’ve not in the region. I’ve had some preliminary discussions with the Environment Department about their drinking water program, because when it comes to guidelines for new projects, from the ISC perspective, it’s a little bit out of our wheelhouse to be looking at water treatment, particularly the wastewater part, but also the water delivery part, which is from a regulatory standpoint more NMED-oriented. Trying to think about the type of projects that would come forward and the kind of help we would need. That’s about as far as we’ve gotten. I would say we would want to sit down with you guys in April and look at the JPA and the guidelines and talk about responsibilities and think through the fiscal agent part, too. We want to talk through the pros and cons of those types of things.”
Allen Campbell, representing the Gila Hotsprings Ditch Association, said he had two comments. “The first thing is that the thrust of the AWSA was to address water inequities in the 1967 adjudication, not the economic assistance to the four counties. That is the reason the moneys and the people involved were to be strictly in the four-county area. Now it seems the legislature wants to bring in some individuals that have a statewide influence, which is again contrary to the Arizona Water Settlements Act. We have been open to other entities joining us. I’m not comfortable with broadening the area of the Gila and San Francisco basins into other counties.”
Schmidt-Petersen said he was not trying to imply that funds would be used outside the four-county region. The issue was a review of applications and support for project implementation in the region. “We do not have water and wastewater engineers working in the ISC, but it is a part of the non-unit effort with the city of Deming and Bayard, for instance. We think we could work more efficiently with the Drinking Water Bureau on those applications and with you all, too. It was not my intent to be statewide.”
Campbell said he was indicating that the decisions need to be made in this area. “The ISC and the Water Trust Board have no people [from this area] on your boards. We can make some decisions and we are supposed to make the decisions in this area.”
Billings said he thought Mr. Schmidt-Petersen made it clear he wanted the entity to be part of the decision-making process.
Gutierrez said he thinks what Campbell might be talking about is the legislation that is under consideration to take the money away from the Unit Fund and give the authority to the Water Trust Board. “What we’re doing is trying to have better representation in the area. Our latest JPA still has a lot of language focused toward a New Mexico Unit. We’ve already gone through the document and taken a lot of that language out. Per comments by Mr. Schmidt-Petersen, I’m confused on how the Water Trust Board would weigh in on this area. In speaking with many others about this issue, it’s clear that there have been difficulties getting projects funded through the Water Trust Board. My question for Mr. Schmidt-Petersen: Do you see this body or the Southwest New Mexico Water Study Group, and I’m still adamant that this group is the successor to that study group and not the Water Trust Board as the legislation is pointing to. I even provided information that supports that to the speaker of the House. Do you still see the ISC in its role in consulting with this entity, the true successor to the water study group in the AWSA, moving forward with recommending projects, regardless of whether the Water Trust Board is making recommendations? You may not be able to answer that. I think the thrust of the AWSA was to have a regional group in this area to determine water projects. Neither the ISC nor the Water Trust Board has representation in this area. I think that is key.”
Schmidt-Petersen said: “I think the pieces you’re talking about are interwoven with HB 200. I don’t think the direction we are talking about has any relation to House Bill 200. We wrote a bill analysis on the bill that raised a number of issues. Our analysis, it’s a separable piece, with the narrative and the fiscal part. What we did with the analysis is what we are trying to do. We’re trying to have a process to move forward. We are following the direction of our commission. We are seeking to have local participation in this area for projects. Our analysis was as broad as we could make it. The ISC is not directly tied to the Water Trust Board. Some of my staff on our planning side do review applications and make recommendations but that’s the extent of our involvement with the Water Trust Board or the New Mexico Finance Authority. We have applied with them for some projects in the past, but that’s about it.”
Hutchinson asked that the group get back on the discussion on Schmidt-Petersen’s statements. “First of all, we should quit talking about the Arizona Water Settlements Act, because what we’re talking about is the Colorado River Basin Project Act. The AWSA is merely an amendment to the Colorado River Basin Project Act, which has been well-described in the Federal Register and on other occasions how that all came together. The whole purpose was to restore water for future usage to the Southwest New Mexico region that stemmed out of the Arizona-California litigation at the U.S. Supreme Court. Our state engineer, our governor and our congressional representatives in the House and the Senate all pushed for future water uses for the region. The U.S. Supreme Court recognized that and put a clause in the Arizona v. California that it could be opened up for future water sources in southwest New Mexico by the Colorado River Basin Project Act The AWSA just confused things. The beneficiaries of the AWSA were supposed to be the Gila and San Francisco river basins, period. The whole purpose was storage and diversion. If the case is that diversion and storage could cause environmental damage to the Gila and San Francisco rivers, which the draft EIS pretty much set aside, then I’m sure the environmental groups that are opposed to our actions down here would agree with decommissioning Navajo Dam, Elephant Butte, Caballo, Abiquiu, El Vado and the diversions provided for in the San Juan-Chama project. I think that if there was a push to decommission all those other dams, we would see a change in attitude from our legislators from Bernalillo, Santa Fe and Dona Ana counties, as well, I guess Valencia County now, because we would be talking about their water supply. Instead, they are focusing their attention on our water supply or lack thereof. So, let’s quit talking about the Arizona Water Settlements Act. It just set up another mechanism by which the Gila and San Francisco rivers could acquire the water we were shorted in the Arizona v. California decree. All this talk about how the ISC is going to direct how we spend the water down here is just a ridiculous conversation. And Rolf, I would like to see the internal drafts of these criteria. I am sure there are other parties who are going to, through IPRA, have that divulged. I would just as soon see it now, so we can be engaged in a real and open conversation about what that criteria are going to consist of.”
Schmidt-Petersen said he appreciated Hutchinson’s perspective and the history he and others have put in. “I think the piece of implementation of the AWSA, we’ve looked at extensively for a long period of time. For the reasons the ISC gave in June, they decided that was not feasible. So that’s why we have another direction. I will not disagree with the statements Howard made, but the direction the commission wants to go is what we see on the page today. I’m more than happy to continue the conversation with Howard and others.”
Gutierrez said he still thought they were talking about two separate things and not necessarily about the Arizona Water Settlements Act. “The development of AWSA water has not been removed from the draft JPA. I think we’re talking about the New Mexico Unit Fund. Although I agree that the fund was set up for a New Mexico Unit, we don’t necessarily have a unit project right now. And it does allow for other water-utilization projects. I completely agree that the intent of the AWSA was to make whole the loss of water to the region. The New Mexico Unit Fund is sought after by many representatives, including ones that represent the members of this board and their constituency, which potentially can use the water for local infrastructure projects. That’s why I’ve taken the direction I’ve taken. We have the ISC wanting this to happen. I’ve had phone calls from people in the San Francisco Valley asking when these funds will be available. So, I think a lot of the constituents want to use this money locally. That’s the direction we’ve been trying to take. It doesn’t give up the ability to develop AWSA water. It does, for sure, dry up the funds to plan and construct a unit. That’s not what I recommend, and the changes don’t take away that possibility. I heartedly agree with Howard’s comments.”
Domenici said the revised JPA that was passed by the board, but will not be presented to the ISC, that it has effectively been tabled. “We worked up a revision of that, but I understand Mr. Schmidt-Petersen’s recommendation not to move it forward to the ISC. I don’t see much reason to move it forward, if the ISC is going to say we don’t want to present it. My view is on part 3 of this document on the screen what is missing in our draft JPA and how do we interface with the ISC and what do we provide. What do we provide and what do they provide? I think the guidelines are important. We really don’t know what our role is going to be. As Howard said, we do really need to be involved, so it secures the local representation. I don’t think House Bill 200 envisions this, so I think we’re looking at a bill that contradicts the vision in this draft of the guidelines. I don’t see a way that this can all be reconciled with the way the bill reads and our objectives and the ISC’s. I think this is helpful to know where the ISC is coming from.”
John Sweetser, representing Luna County, asked what would happen if HB 200 passes. “What would that translate to us?”
Schmidt-Petersen said he has wondered that himself. “We have had some internal discussions. I believe the ISC would do its best to address both state law and the federal law requirement.”
Joe Runyan, representing the Gila Farm Ditch, noted that “we are not supplemented in any way to irrigate our 460 acres. We assess our members. We do all the dirt work for the diversion. I just think we’re going to be disenfranchised from these moneys if we move forward in this direction. We have no capacity to do engineering, make proposals, so I’m reluctant to relinquish any of our local control. I wish that we could be reassured that we would still have access to these funds. It looks like the entities that get them will be larger, more well-funded.”
Schmidt-Petersen said it’s a hard question to answer. The Water Trust Board process is a rather daunting one. “If the bill goes forward, what happens to the smaller entities, is that your question?”
Runyan said: “We have had a say in projects and usage of the funds. If we proceed with the JPA as modified, it seems to me that we are totally disenfranchised from the process. How can you assure us that we will have access?”
Schmidt-Petersen said what he has been talking about, the guidelines will be determined between the ISC and the CAP Entity in its successor role. “I think just being on the entity itself doesn’t secure the certainty of meeting the criteria requirements. But the concept of working with the entity in its successor role, the entity would be able to help local parties in developing applications. I think that would then help across the board of getting more projects shovel ready. That’s the idea behind that.”
Billings asked if the entity could have access to the funding to get the projects shovel ready.
Schmidt-Petersen said: “That is the intent. We don’t have representation in the region. The New Mexico CAP Entity would be our augmented help in the region, so that all of the necessary background material and all the boxes are checked. Let’s evaluate how problems can be addressed.”
“We had a direct vote on our decision for the Gila River,” Runyan said. “I think our decision-making will be dissipated. That’s my concern of giving up our status on the Gila River. I guess we have to accept the practicalities that the money will be used for other uses than our Gila River water, but thank you for your response.”
ISC Attorney Dominique Work said in response to the question from Runyan: “I think what we envision is that money from the fund would be used to pay for engineering services to help proponents create a project for what they want on the ground.”
Billings said he understood that the ISC would be working with Gutierrez to get some guidelines to the group in March or April.
Schmidt-Petersen said, addition to the engineering dollars, the planning piece would also be in the guidelines. “Planning and engineering support is what we’re looking at to get projects shovel-ready. What we can do, what the entity or other parties could do in the region to get projects ready to build. We’ll do a better job of getting projects ready. We’ll be able to bring them to the ISC and say, yes, this project has the ability to go forward and construct. I need to jump off for another meeting. I look forward to continuing to work with you.”
With no public input, the entity went into the next item of business, which was old business to approve or disapprove the JPA changes.
Gutierrez said the entity needs to see the guidelines. “I assume Mr. Schmidt-Petersen would like to describe the rules and responsibilities of the CAP Entity before we make any more changes to the JPA. We can continue to work under the present JPA. The ISC is a member, and we have to have all members approve the changed JPA.”
Ty Bays, representing the Grant Soil and Water Conservation District, after suggesting the item should be tabled, said he was hoping to ask a question. “One could interpret that the ISC wasn’t going to approve our amended JPA if we didn’t agree to their changes. This kind of plays into HB 200. If we don’t appease the ISC with the JPA, there wouldn’t be even any positive comments from the ISC on our behalf in opposition to that bill. We’re sitting with a JPA that they won’t approve, and we don’t have time to get it back to them in time to oppose this bill. I kind of feel like we’re being used a little bit. I would make the motion to table the amended JPA at this time.”
Vance Lee, representing Hidalgo County, seconded it and asked to make a comment or two. “From the narrative we heard from the ISC, it seems to me that the ISC has made decisions without our consultation about the direction they’re going to go with this thing. I’m not comfortable with the No. 3 that was presented. I suspect there are others among us that aren’t comfortable. I agree with tabling this thing. It seems like behind the scenes there is an effort to help House Bill 200 go through.”
Gutierrez said none of the conversations he has had with the ISC staff have been about House Bill 200. “If you read the bill analysis from the ISC, it’s pretty close to some of our issues with the bill. The consultation we’ve had since the beginning with the ISC, even when the non-unit projects were looked at under the Gila-San Francisco Water Commission, has been positive. Back in June they wanted to make sure some things we want to accomplish happen. I can’t see where their action was focused on this bill. It’s not the first time, it has been tried to move our money to the Water Trust Board. This bill is just trying to rewrite history.”
The amended JPA was tabled.
Under new business, Gutierrez presented the resolution opposing House Bill 200.
“It identifies the members of the New Mexico CAP Entity in the first whereas,” Gutierrez said. In the second, it recognizes the entity as the successor to the Southwest New Mexico Water Study Group, as named in the Arizona Water Settlements Act as the regional entity authorized to consult with the New Mexico Interstate Stream Commission on withdrawals from the New Mexico Unit Fund for paying costs of a New Mexico Unit or other water utilization alternatives to meet water supply demands in the Southwest Water Planning Region of New Mexico. I provided this section to the Speaker of the House, because he asked me about the succession. Actually, the request to form a study group here came from the U.S. Senators who proposed the AWSA to determine whether they wanted to develop the water. The planning group was formed through co-operative agreement and an MOU. One of the first things we did was a JPA in line with what the senators wanted. We have lots of documentation from the attorneys in Grant County on the creation of the first group. Next was the Gila-San Francisco Water Commission, then there was a resolution from the GSFWC to hand the reins to the New Mexico Central Arizona Project Entity.”
He said the next whereas states that HB 200 would violate the provisions of the AWSA, by replacing the regional authority given to the SWNM Water Study with that of the Water Trust Board, thereby violating the U.S. Constitution Supremacy Clause.
The following whereas notes that the southwest region has no representation on the Water Trust Board thereby removing the original intent of the AWSA to have the southwest New Mexico region participate in the decision-making process.
The next to last whereas notes the change in authority could place additional burdens on rural communities and association by having to meet the criteria and policies of the Water Trust Board.
The final whereas states HB200 would also violate the language in the AWSA by removing provision of federal law for usage of the New Mexico Unit Fund for the development of New Mexico water.
Domenici noted that it’s important to have this resolution stating the entity’s opposition. “Now that we have a clearer understanding of how we plan to proceed, it’s important that we maintain our role and our decades of institutional knowledge. The fundamental flaw in this bill is the New Mexico Legislature deciding the successor to this group. We have a strong succession and a very strong JPA currently in place. It’s illegal to manipulate the succession and secondly, I think it’s illegal to appoint a statewide body, like the Water Trust Board, to be the successor. It totally undermines the purpose and the intent and the letter of, the actual written language of the AWSA, so that’s why it states the legislation violates the federal supremacy clause, because it takes away from Congress how they want the decision-making to take place through the successor to the water study group. It should be clear to this group that there is no benefit to this area and could be detrimental to the area to have the Water Trust Board become involved.”
Campbell moved to approve, and Lee seconded the resolution. Lee noted that the Southwest New Mexico Water Study Group that is in the AWSA language, “we had a question about why we were called the Southwest New Mexico Water Planning Group. The group was formed even before the AWSA was passed. We were asked by U.S. Senators Pete Domenici and Jeff Bingaman to form a planning group, so that’s what we called ourselves, then the Act came out with study group language. But we were the original group formed at the request of the senators.”
The motion passed through a roll call vote.
The next item on the agenda would be to send the resolution to all the legislators, so as Billings said, “they would know our opposition to HB 200.”
Gutierrez said the letter mirrors some of the resolution and explains to the legislators why the entity opposes the bill. “I will send it out as soon as this meeting is done, to all the legislators, but particularly our legislators and those on the Agriculture and Water Resources Committee.”
Again, through roll call vote, it was approved to send it out to the legislators.
Gutierrez said he had nothing further to report. In the Roundtable discussion, Billings said he had discussed a change of name of the entity with Mr. Sweetser, who serves as secretary for the entity. “There is a definite succession from the water study group, so I thought it might muddy the waters. I’m glad the ISC brought it up.”
The next regular meeting is scheduled for March 2, 2021.
The group adjourned.