Editor's Note: This is part 5 of a multi-part series of articles on the Commission's work session on March 9, 2021 and the regular meeting on March 21, 2021. This article is reporting on what was said by commissioners with multiple Editor's Notes to present the true facts.]

By Mary Alice Murphy

After the review of most items on the Grant County Commission work session on March 9, 2021, one last resolution elicited a great deal of discussion. The review of and decisions made at the rest of the meeting can be read at https://www.grantcountybeat.com/news/news-articles/63767-grant-county-commission-reviews-regular-meeting-at-work-session-030921

The resolution was presented by District 5 Commissioner Harry Browne to support House Bill 200, which would take away statutory authority to advise the New Mexico Interstate Stream Commission on water utilization projects as stated in the Arizona Water Settlements Act from the New Mexico Central Arizona Project Entity and give it to the Water Trust Board.

"This is why I think this is important," Browne said. He said that the allocation of $90 million of federal funding put into the New Mexico Unit Fund has grown to about $105 million and is available for a New Mexico Unit or water utilization projects in the four-county region of Catron, Grant, Hidalgo and Luna counties, as stipulated in the AWSA.

He alleged that the NM CAP Entity was created by its members to develop a New Mexico Unit diversion project, [Editor's Note: Not quite true, as it was the direct successor to the Gila-San Francisco Water Commission, which was the direct successor to the original Southwest New Mexico Water Study Group, as named in the AWSA as the advisory body to the ISC for development of water for a unit or other water utilization projects], but the members were unable to come up with what the Department of the Interior thought was a viable project. For that reason, the Secretary of the Interior did not issue a record of decision by Dec. 31, 2019, as required and he refused an extension of time to Dec. 31, 2030, as was possible in the AWSA.

Browne pointed out that the federal act stipulates that the ISC has the authority to disburse the funding for water projects, through consultation with the Southwest New Mexico Water Study Group or its successor [The New Mexico CAP Entity].

Browne said Gov. Bill Richardson named a different successor to the Water Study Group than the one chosen by the original water study group. [Editor's Note: Partly true. Richardson supported the succession of the Gila-San-Francisco Water Commission in 2007 as the successor to the original water study group. It remained intact and working and was the predecessor to the current NM CAP Entity. But while Richardson supported it, he made the decision to create a different entity, a Stakeholders Group, consisting of area representatives, as well as federal and state agency representatives.]

Browne alleged the CAP Entity modified its charter [Editor's Note: It wasn't a charter, it was a continuation of the MOU from the Gila-San Francisco Water Commission with the ISC, and it then became a joint-powers agreement to be a stronger document.] to do non-unit alternative projects as well. [Editor's Note: An amendment to the JPA allowed alternative water utilization projects.] Browne said the document set as a stipulation that the alternative projects not be considered until a Secretary of Interior record of decision was issued. "There is no chance of that now," Browne said. "Nothing in federal law says that the NM CAP Entity should remain in the consulting role." He said that the state could name another consulting authority [Editor's Note: Not according to Section 212 item: "3) … Withdrawals from the New Mexico Unit Fund shall be for the purpose of paying costs of the New Mexico Unit or other water utilization alternatives to meet water supply demands in the Southwest Water Planning Region of New Mexico, as determined by the New Mexico Interstate Stream Commission in consultation with the Southwest New Mexico Water Study Group or its successor, including costs associated with planning and environmental compliance activities and environmental mitigation and restoration.]

Browne noted that Sen. Siah Hemphill was one of the sponsors of the bill and "she and I agree that the Water Trust Board should take over the consulting role. We do not believe that the New Mexico CAP Entity should continue in the role. For one thing, it is not a very balanced body. It's made up of larger entities, like counties and municipalities, but also smaller entities like irrigation associations that have an equal vote. Members might propose their own projects, which would be a conflict of interest. In my opinion they would not be able to decide on projects. They have not been able to meet deadlines. [Editor's Note: And that is because of bureaucratic intrusion into their proposals. Every time one was determined, either or both the ISC and the Bureau of Reclamation shot it down, usually for financial reasons, although the members said much of the work could be done by them and done locally at much less cost than estimated by the ISC and Reclamation.]

Browne said he believed the impartial body of the Water Trust Board would not be buffeted by political winds, as it is made up of 16 members including governor-appointed cabinet secretaries, [Editor's Note: That is the definition of political winds – as administrations change, so do members of state boards.] representatives of certain types of agencies, including ditch associations, three agricultural representatives include the state cabinet Secretary of Agriculture, one Native American seat and an environmentalist seat. He went on to say that the Water Trust Board has reviewed hundreds of projects and the members draw on the Department of Finance for financial authority.

"I think if the CAP Entity had been a more well-balanced body, it would have been preferable to have local expertise, but that didn't happen," Browne said. "I think the executive director tried to make it balanced. The decision by the board to add more members has to be a unanimous vote. I don't think they can get that on membership or on a project." [Editor's Note: Again false. The JPA states: (c) New Parties to this Agreement may be added by a 2/3 majority approval following written request.]

He said he testified as an expert witness in hearings and on the House Floor session. [Editor's Note: Why was Browne an expert witness? He may have attended a few of the CAP meetings, but he doesn't know the history. His background is not in water issues, but in organizing activist groups and in finance, as the finance officer for Aldo Leopold Charter School, which he helped found.]

When he testified, he said he heard considerable concern with taking away local consultation. "I share that concern, but I see only two options—continuing with the New Mexico CAP Entity or going with the Water Trust Board. I believe the Water Trust Board has processes to hear from local proponents of projects, such as Hanover or ditch associations. The Water Trust Board follows the regional water plans, and our region has one. That is a further source of local input. I think the Water Trust Board option would avoid local infighting that could happen. That's why I think an 'independent' body is a good idea."

District 2 Commissioner Javier "Harvey" Salas asked if the change to the control of the funding would kill a potential diversion.

Browne replied that the ISC controls the money, but the HB 200 does state that a New Mexico Unit cannot be constructed. "But the Gila Basin Irrigation Commission, for example, can do improvements to its existing ditch, but the bill does not allow taking new water through exchange with the CAP Project in Arizona."

Salas said: "So this bill takes away the availability of the Gila River water and sends it to Arizona?"

Browne said that if a project had been possible, then the Bureau of Reclamation would have agreed with a unit. "I know my answer is different from what you're asking."

Salas said he understands that the "new" water would have a cost of exchange and the user would have to pay Arizona to lease it.

Browne did confirm that the right to take the water and pay exchange costs does not go away. "If in 50 years, a project, a unit is feasible, then it can be done."

Salas said his idea was to take Gila River water to recharge the Mimbres Basin.

Browne said that has been suggested, but at this moment, Freeport-McMoRan, which has the infrastructure, does not want to go through a NEPA process."

"So, what you propose is to make application to the Water Trust Board to use the funding for local projects," Salas said. "The scariest part is to trust the government to do things for us, especially when the bureaucracy is in the north. The AWSA states that the funding can only be used in this part of the state. Is there any way to replace the CAP Entity with appropriate representation?"

Browne said it would be possible, but it would take at least a couple of years to transfer everything. "Only the Legislature can say that this is the appropriate group to replace the CAP Entity. Another couple of years funding the CAP Entity would not allow projects to be completed quickly."

Salas asked where the CAP Entity came from.

Browne alleged that it was an idea and they created themselves. [Editor's Note: FALSE. The Gila-San Francisco Water Commission named the NM CAP Entity as the successor to its group, so that it could work with the ISC on designing, and ultimately constructing a New Mexico Unit.]

Salas said someone had to grant the group authority to do that. Browne said the ISC said OK, you can do this. [Editor's Note: See above.]

Salas then asked if it wouldn't be the ISC to designate another group. Browne again said the legislature would say who could do what. He also said the Legislature controls the purse strings [Editor's Note: NO. When the GSFWC transferred its duties to the NM CAP Entity, it had to go through the ISC and the Department of Finance and Administration for approval, and the ISC controls the New Mexico Unit Fund monies, not the Legislature, which can control only the ISC appropriation requests.]

District 1 Commissioner and Chairman Chris Ponce said he was on the fence himself and it had nothing to do with a diversion. "I look at this bill and it has no monies tied to it. I have to look at the communities that need the water resources, including agriculture. Hurley doesn't have its own water. I would feel more comfortable if the region had representation on the Water Trust Board. What I don't want to do is create a longer process. It will still take a long time. I have to study it a bit more. I'm trying to understand the Water Trust Board and make sure it understands our concerns. I want to make sure the water stays in the region. [Editor's Note: Passing this bill will ensure that the water continues to flow to Arizona, because there will be no place to store the water other than utilizing it as it is at present with only current water rights.] I can already see red tape. We need to take politics out of it."

Browne said: "We all want to see the money spent wisely. Red tape is just another way of saying if the project makes sense. I can propose language to see representation on the Water Trust Board."

"Why can't we decide on a project, go to the Council of Governments and then to the Water Trust Board?" Browne asked.

"I think Priscilla Lucero would be a great representative on the Water Trust Board," Ponce said, "but she has so much to do, she might be mad at my saying that."

Browne said that the entity's own JPA prohibits putting any money toward alternative water utilization projects. [Editor's Note: FALSE. This is from the amended NM CAP Entity's JPA approved on June 2, 2017. "WHEREAS, Section 212(i) of the AWSA provides that withdrawals from the NM Unit Fund shall be for the purpose of paying costs of the New Mexico Unit or other water utilization alternatives to meet water supply demands in the Southwest Planning Region of New Mexico"; and further "Funds from the New Mexico Unit Fund may also be used to investigate and/or obtain, through lease, purchase, or other transfer mechanism, water resources and infrastructure currently owned by FMI and for the operation, management and/or utilization of such water resources and infrastructure upon lease, purchase or other transfer to the New Mexico CAP Entity"; and "WHEREAS, the Parties desire to create and serve as the New Mexico CAP Entity, for the purposes of planning, designing, building, operating and maintaining a NM Unit and for the purpose of developing other water utilization alternatives to meet water supply demands in the Southwest Planning Region of New Mexico;" and further "WHEREAS, the Parties desire to obtain all benefits from (1) the diversion and beneficial use of the AWSA water and (2(2) the development of other water utilization alternatives to meet water supply demands in the Southwest Planning Region of New Mexico."

Salas said he thinks the most viable option is to have the four counties come together. And Browne said he thought that was a great idea. [Editor's Note: That is what the New Mexico CAP Entity IS. All four counties are represented, as well as most of the larger municipalities, with the exception of Silver City, which chose not to participate because of liability fears.]

District 3 Commissioner Alicia Edwards said: "Here I sit while I watch the three of you have a meeting." She said she has wrestled with the Water Trust Board issue. "I'm not happy with them being the entity to provide recommendations to the ISC for water projects here. However, given the time constraints and the failures of the CAP Entity, it seems the Water Trust Board is the only way to go." She also said she has thought a lot about appointments from the area to the Water Trust Board and Lucero was one.

"We need to get money flowing for projects," Edwards said. "What if we had a process like the ICIP (Infrastructure Capital Improvement Plan) for us to prioritize our projects. We have to realize that a lot of organizations don't have the capability to apply." She said when she looked at the backgrounds of the Water Trust Board members that, in fact, the environmental representative does not belong to any environmental community. Maybe the term should be ecological to look at ecological impacts of projects, she said.

She also noted that small entities, such as ditch associations don't have the money for planning and designing a project. "If we think the COG can help them, we don't have a plan for what happens when Priscilla is no longer our executive director. We have to make capacity for the COG to be more sustainable. We rely heavily on Priscilla for a lot of things. We need to expand that organization. It is also important for us to think about 'equitability' of what we're proposing. I don't think that irrigation or agriculture is any less important, but keep in mind what the priorities are and how many people are impacted."

Edwards continued by saying the NM CAP Entity had spent "an incredible amount of money on 'chasing rabbits.' I am in support of the resolution with language changes. I'm more opposed to the CAP, but I don't want to wait to get these water projects going, as quickly as possible. I agree we need local representation."

Ponce agreed with Edwards that local entities need to be part of the process.

During commissioner reports, Browne suggested moving the chairs around so that Edwards is not so far away from the other commissioners. [Editor's Note: District 4 Commissioner Billy Billings is equidistant from the commissioners as is Edwards. He was unable to be at the meeting due to an emergency work obligation.]

Ponce noted that he attended the virtual U.S. 180 reconstruction project proposal meeting. "It was pretty interesting." He noted that his favorite option comes with a lot of costs. One of the options has a passing lane every so often, but he thought it might be dangerous for someone to get stuck in it and get caught up into oncoming traffic. "I would prefer the whole highway have four lanes. One option also called for the removal of the bridge at Hurley."

The work session adjourned.

The final article will address the discussion on HB 200 at the regular meeting on March 11, 2021 and will conclude the series of articles.