By Mary Alice Murphy

The regular monthly meeting of the New Mexico Central Arizona Project Entity took place remotely on June 1, 2021.

After confirming that a quorum of members were present and with no public comment, executive director Anthony Gutierrez began going through the red-lined version of the amended Joint Powers Agreement, which is the governing document of the NM CAP Entity. "We attempted to remove any connection to the New Mexico Unit Fund and any connection to the New Mexico Interstate Stream Commission. Because right now, the ISC chose at a recent meeting not to approve a budget for the NM CAP Entity nor to be a part of the JPA, even as a non-voting member."

Struck was any language related to the ISC being the fiscal agent of the entity. "We are still the entity, so we left that language in the document. We removed several whereases that related to the New Mexico Unit Fund and the U.S. Bureau of Reclamation."

He noted a whereas that was added, which stated that the parties to the document "intend to remain available to resume as the successor to the Southwest New Mexico Water Study Group for the purpose of consulting with the ISC to develop water utilization alternatives to meet water supply demands in the Southwest Planning Region of New Mexico;…"

Gutierrez said that the Whereas on page 3 was slightly changed but stated that the NM CAP Entity is the designee pursuant to the CUFA (Consumptive Use and Forbearance Agreement), as ratified by the Arizona Water Settlements Act, through the designation by the State of New Mexico through the ISC. The next whereas states that "the parties desire to continue to serve as the New Mexico CAP Entity for the purposes of planning, designing, building, operating and maintaining a New Mexico Unit and for the purpose of developing other water utilization alternatives to meet water supply demands in the Southwest Planning Region of New Mexico;…"

A subsequent Whereas adds a fourth note to the document that the parties desire to obtain all benefits from (1) the diversion and beneficial use of the AWSA water, (2) the development of other water utilization alternatives to meet water supply demand, (3) the exercise of rights and authorities by the Secretary of the Interior pursuant to Section 212(c)(4) of the AWSA, Publ L. 108-451, 118 Stat. at 3528, and (4) undertaking such other activities as are authorized for the development of AWSA water in the Southwest Planning Region of New Mexico."

Gutierrez said that every time "JPA" is mentioned in the document that the word "amended" had been added to it.

Under the section on purposes the language on the Record of Decision section (e) was deleted from the document. In section (f), Gutierrez said the NM CAP Entity can continue to investigate water utilization alternatives and can continue to discuss potential projects with Freeport McMoRan.

Gutierrez noted that although the Water Trust Board has been given the consulting role to the ISC on water projects, because the NM CAP Entity represents a large portion of Southwest New Mexico entities, it could still potentially offer comments and recommend proposals. "I hope the ISC will recognize that recommendations from us for beneficial water use are valuable."

In section (j), he said that much of the language on the use of funds will remain the same, except for the removal of the words New Mexico Unit Fund and "shall" was changed to "may" in order to leave open the potential opportunity to go forward with a project. It also leaves open the opportunity for the entity to apply to the Water Trust Board for a project to provide funding for a beneficial use of water and get funding out of the New Mexico Unit Fund. It also leaves open the door for the entity to apply for other sources of funding and allows the useof such resources for planning, design and construction of other water utilization alternatives in order to ensure that adequate financial resources are available to meet water supply demands in the region.

Under the Joint Powers section, the entity retains the authority and power to implement the New Mexico Unit Agreement, which was provided to them by the Secretary of the Interior, and it gives the entity the authority and power to designate fiscal agents, as well as to implement this amended JPA. And perhaps most important to many of the members, the authority and power to undertake such activities as are authorized for the development of AWSA water in the Southwest Planning Region of New Mexico. It retains a mechanism to plan, design, build, operate and maintain a New Mexico Unit and to provide AWSA water for uses allowed under the CUFA and AWSA.

The NM CAP Entity shall meet at least once per calendar year and may meet as many times per calendar year as determined necessary by the Board, with each party entitled to one vote.

Aaron Sera, representing the city of Deming noted that he believes the Open Meetings Act Resolution needs also to be amended.

To a question from Vance Lee, representing Hidalgo County, concerning membership in the group, Gutierrez replied that the amended JPA would be sent out to all current members, with a request that if they are not going to resume their membership through attendance at meetings, that they send a formal notice of withdrawal. "This is an opportune time to clear that up."

Related to fiscal matters, all mention of the ISC as first fiscal agent or to submittal of budgets to the ISC were removed. Because all members are subdivisions of the state, the entity cannot be its own fiscal agent.

Because the bylaws need to be changed also, they will be cleaned up and sent with the amended JPA.

On the issue of the waiver of sovereign immunity, it is specifically limited to the development of AWSA water or to activities that are governed by the CUFA or the New Mexico Unit Agreement. "For all other activities undertaken, the NM CAP 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."

Should the NM CAP Entity become a legislatively authorized political subdivision of the state, the amended agreement shall not be terminated as long as any bonds issued in connection with the AWSA are outstanding.

About the list of members, it was suggested that rather than specific names, it should just list the agency or association and the word representative.

Howard Hutchinson, representing the San Francisco Soil and Water Conservation District, said last time they had discussed amending the JPA, he had objected to the language that the water and the unit once diverted or stored should be operated solely for the New Mexico CAP Entity. "It is being managed for the beneficial use of the users, not the entity. I also think we should discuss how the entity could contract with users."

Gutierrez said: "We went back to the second amended JPA, which was never submitted or approved by the state. I'm aware of what Howard said. It is not in this document, but I will add it to this one. It was related to the ownership of the proposed and existing infrastructure."

Hutchinson said as the NM CAP Entity, "we entered into the New Mexico Unit Agreement only for the purpose of building a unit to capture and utilize the water. Since the legislative and executive branches have elected to remove our access to the Unit Fund for that purpose, they also removed our ability to coordinate with and consult with the ISC. Why is that still in there? I don't think the state of New Mexico has the authority to amend the AWSA. I would say that the ISC, as part of the AWSA, still has the authority to consult with the NM CAP Entity. I think the ISC under the AWSA is still required to consult with the true successor to the listed planning group, which is us, the New Mexico CAP Entity. Through the state legislation, are we required to ignore the federal Act?"

Chair Billy Billings said: "Good point."

Allen Campbell, representing the Gila Hotsprings Ditch Association, commented on Hutchinson's comments. "This is a dangerous position instigated by the New Mexico Legislature. They have essentially disregarded the rule of law and created a conundrum of what they want to do. They have attempted to change federal law to fit what the state wants to do. I don't think we should capitulate but should leave everything in the JPA to retain all our authority."

Gutierrez noted that the entity's attorney Pete Domenici provided information to the legislators before House Bill 200 was approved. "While the ISC does not want to violate federal law, as a state agency, they have to follow state statute, which was to designate the consultant role. Until something is changed, for now, this is the way it has to be recognized."

ISC Attorney Dominique Work said: "Anthony is absolutely right. The AWSA says that the ISC will consult with the Southwest New Mexico Water Study Group. The Legislature has passed a law making that successor the Water Trust Board. We have to follow state law."

NM CAP Entity Attorney Pete Domenici said if the consulting authority were to be restored to the New Mexico CAP Entity, "we didn't want to have to amend the JPA again, so we left the consulting role in the language. Also, the New Mexico CAP Entity, if it chooses to comment on a water use alternativem has the authority to engage in consultation on a particular water utilization. The JPA preserves two rights 1) as the entity to consult and 2) the right to consult without being the authorized consulting agency."

Hutchinson said: "I hear all these circular arguments. It's interesting that for nine years, the ISC and the Legislature recognized the successors to the water study group, which culminated in the New Mexico CAP Entity. They can pretend that the entity is not the successor, because the Legislature decided to alter it. Basically, they are lying, which grants them the ability to ignore federal law. At the Nuremberg Trial, the excuse was: 'We were just following orders.' That is not an excuse for not following the law."

"I doubt that I can recommend these changes to the San Francisco Soil and Water Conservation District," Hutchinson said. "If we do it, it violates federal law. This JPA has numerous flaws and will not accomplish the ends we're looking for."

Domenici weighed in. "Maybe you have complaints about the first fiscal agent? The main changes are to remove the language about the ISC since they are choosing to withdraw from the entity and from the joint-powers agreement. As far as the consulting, that language is flexible, so we'll take suggestions. Some of the language reflects the resolution we finally got from the ISC. We're trying to make the JPA a placeholder for some entity to be able to develop the water. I would like to highlight your concerns. Once they withdraw, the ISC language goes away. Their resolution to withdraw could be made part of the document and could allow not having to amend the language. I don't want not to have a JPA in place. I don't want to leave without an operating JPA."

Campbell said he would respectfully disagree that the entity is the cause. "We shouldn't change our principles to bend to another's illegal activity. I will not support this amended JPA."

Billings said: "I think never before, as with the NM CAP Entity has so much time, talent and treasure been put toward what didn't happen. It's been an uphill battle since the beginning and especially since I took office in January. I don't see a way forward. I think Pete and Anthony can create a path for the NM CAP Entity to remain. I see an end without compromise and cooperation until the law is challenged in court. But where will the money come from to go to court? I'm afraid what the Legislature passed and the governor signed will be the law."

Gutierrez said he's been struggling with the whole issue. "I tried to send a lot of documents to the legislators. If you were able to listen to the hearing, even the ISC was not able to testify, although it did present the document that showed the NM CAP Entity was the successor to the water study group named in the AWSA. In 18 days, you will have no executive director and in 30 days, no budget. This JPA allows you to do consulting, but it's up to the ISC to allow that consulting. The old JPA doesn't apply any longer. The ISC has made the decision to follow the new state law. If we put the JPA aside, the resources to bring back the entity aren't there. The Gila-San Francisco Water Commission operated, but it operated on limited resources that the members put in."

Campbell said he has never contributed to nor taken money from the NM CAP Entity. "I could say the state of New Mexico is going to have problems with what they've done. I would like to remain a group. This political situation with Santa Fe with the inmates electing to run the asylum cannot long stand. Someone will make changes. We need a cadre of people when the ship is righted. We can do it by staying somewhat connected."

Hutchinson said he thought Domenici had proposed looking at things that "are giving me concerns. Is there a fix? Basically, the amendments being proposed revert us back to the Gila-San Francisco Water Commission. Is that not the direction we're going?"

Gutierrez said it is, but with the exception of all the things the NM CAP Entity got done, such as the New Mexico Unit Agreement, the planning, design and operation authorization. "So, yes and no. Yes to no more New Mexico Unit Fund, but no, because of the things we've accomplished."

Hutchinson agreed that things were accomplished by the entity, such as the New Mexico Unit Agreement and the authorization to design, plan and build a unit and that they need to be in the JPA. "I think with Allen's statement to remain together, although maybe the chair is ready to throw in the hat, it's true that politics change, elections change things. I think it is better to remain on the battlefield rather than turning tail and running. I would propose that we table approving any amendment and schedule a special meeting to consider an amended JPA that addresses some of the issues that have been expressed."

Billings asked to clarify the statements. "Howard, you talked about throwing in the towel and turning tail and running. You are the one that threatened not to recommend the amended JPA to your organization, unless you get your way. I don't see it passing, because any one member can hold hostage the entire group. I don't see a path forward if that's the kind of tactics we are going to use. That's my disappointment. Surely, we want to take into account members' concerns. We are running out of money and time; we won't have any money; we won't have an executive director. If this group is going to stay on the battlefield, we have to come to consensus and wrap this up. I'm not opposed to another meeting."

Joe Runyan, representing the Gila Farm Ditch, said: "I monitor the river flow every day. The Gila River is bouncing off historical lows. It's at 20 today. It will probably be 18 later today. It's the worst drought in record-keeping. The bottom line is those concerned about the Gila said: 'We'll destroy the Gila, and our plan is strictly preservationist.' That is basically what they did. Now worldwide, they're doing it in India, in China, in the Middle East, the only way to get Gila water is to do slow water. The watershed is damaged, and it takes up about a quarter of the state. As Dave Maxwell has pointed out, just a marginal improvement in the carrying capacity, the storage capacity, the slow water concept on the Gila, the 14,000 acre-feet would be available. So, when I get back to the people on the Gila Farm Ditch, the first thing they're going to say is: 'It looks like our water just stepped up a percentage point in value.' Because there's going to be no AWSA water. But if you're looking for the greater good of Southwest New Mexico, I think the only step forward, I agree with Billy, possibly we keep our organization intact in case political winds change. Unless the public can view the possibility of there actually being water to harvest, I think it's going to be a struggle. There has to be a comprehensive plan to fix the watershed, from overgrazing, ATVs making ruts where you see massive sheet runoff. I agree we should remain engaged, but we are just fighting some headwinds. The preservationists say leave it alone, don't change it. For much of the public that seems logical, unless we get a dramatic change in rainfall. The Gila tonight will be at 18 cubic feet per second. Normally, the Gila Farm Ditch carries 12-14. Look at what we're fighting. The legislators have a lot of ears. They want it as a recreational benefit, but that is not beneficial water usage. I think we should be realistic on our path forward. I think we should preserve the CAP Entity to try to harvest water and until there is a way to fix the watershed. To do the battle month-after-month, I don't think it's a good use of time."

Lee said: "This is a conversation we all knew was coming. Based on the 17 years some of us have been doing this, it's always been: 'It's about the water.' I think every drop of water we can keep in New Mexico, we should. I think we should hold the special meeting and keep the JPA alive and our entities going. I move we table this third amendment until a meeting within the next two weeks and we take it on again."

Campbell seconded it and it was approved unanimously.

The next item addressed approval of the final engineering report from Stantec Engineering.

Gutierrez said he had gone through the report. "This is the report of all the engineering provided to us as well as to the NEPA contractor. We put in language that the San Francisco Soil and Water Conservation District provided as information to the Bureau of Reclamation. Stantec put into the report only what they provided. It's a long report, with the alternatives we presented. We also used AECOM information. I recommend approval."

A motion was made and seconded. Hutchinson asked to comment for discussion. "I read through the San Francisco portion, because it's where my concerns and knowledge are. There are still a lot of assumptions included in the design. I tried to get our engineer to correct some of them, and they are still not corrected. I will go to my board to try to get the structure to get delivered. We will have to go through it at some point and get it reengineered. I thank you, Mr. Maxwell. I know you did a lot of work and quickly, but it is disappointing that we don't have the information we need."

Gutierrez noted that a lot of pressure was put on Maxwell and his engineers to gather a lot in a short time. "They tried to meet the NEPA contract demands."

The engineering report was approved.

Under new business, Billings asked if the acceptance of the resolution from the ISC to withdraw from the NM CAP Entity was necessary or was it just a formality. Gutierrez replied that the bylaws allow anyone to withdraw. Domenici said that was correct, so no action was needed.

The next item of new business was discussion on potential litigation against the implementation of the "Water Trust Board Projects and the New Mexico Unit Fund Act" better known as HB 200, passed in the 2021 legislative session.

Gutierrez said the item was part of a motion when they came out of executive session at the last meeting, and it was requested to be put on this agenda. "I know there are issues with moving forward with litigation. The main issue is funding. I don't have a recommendation on this one."

Domenici said: "Briefly stated, the costs and risks outweigh the benefit. The court's authority and ability to order reinstatement of funding is limited. It would be expensive. Under the circumstances, I recommend not pursuing litigation involving HB 200, at this time."

Hutchinson said what he had laid out as statements of facts, it is pretty clear under the New Mexico Supreme Court decision on this kind of issue was that they were seriously concerned with the legislative or executive branches tampering with federal appropriations. "They made it clear that neither the legislative nor executive branch has the power or the authority to control the use of disbursement of federal appropriations. The justices considered this to be a serious constitutional issue under the New Mexico Constitution. There is also a very serious consideration whether the Legislature has the authority to amend federal law. And under the U.S. Constitution's Supremacy Clause, they do not. Once the federal government has acted and particularly has made an appropriation, the state Legislature is limited."

"I'm very much a state's rights advocate and if the federal government exceeds its authority under the Constitution, it [unintelligible with someone speaking over him]," Hutchinson said. "I think what we have before us is the state legislative and executive branches conspiring to violate both the state and federal constitutions. That should be the concern of every resident of the state. When they do it, it is tyranny and should not be allowed to stand. I understand that this board is not of the mind to pursue litigation nor do we have the funds to litigate. The San Francisco Soil and Water Conservation District has given me authority to seek public help to pursue the issue. If I am successful in locating a group to take on the litigation, I would welcome anyone to take part."

Campbell asked what the statute of limitations is on the issue. Haydn Forward, representing Catron County asked Domenci a similar question. Domenici said he did not have an immediate answer, either to when the statute of limitations begins or how long. "It may start with the first agreement with the Water Trust Board, and it could be two years after the statute begins. Often it's two years after the first refusal of a project."

Billings noted that until harm is done, there may be no cause for a lawsuit.

Under the executive director report and round table discussion, Gutierrez said he is in the process of organizing all the reports he has compiled during his tenure as director of the NM CAP Entity.

Domenici said: "In terms of funding running out, I know Anthony is gathering records and my office is doing the same. We need a records retention policy. We need a repository or entity willing to do that. I would like the board members to help come to a decision on that at the next meeting."

Gutierrez said he is willing to keep the records. "I'm putting them in secure boxes and making electronic copies of just about everything. I'll do what I can do until we find a place to archive them."

Ty Bays, representing the Grant Soil and Water Conservation District said he was glad the members came to a resolution on the JPA. "I would hate to see us split up the entity. We've been pounded back by the Legislature and the governor with the aid of formidable multi-million-dollar-funded foes. I'm glad we're going to continue. The CAP water was given to the state of New Mexico because of the poor decisions of courts. If we have failed, it was our failure to communicate the value of water for our future. We're battling some folks that are not only against capitalism but against a multitude of other things, including agriculture and our society the way it is. We need to endeavor to continue this effort and bring to fruition this valuable resource. I'm not talking about value in money, but in survival. This water will be vital. I'm not being antagonistic, Mr. Runyan, but your comments about the cause of the river flow being so low. It's probably not grazing, it's probably not ATV use, that watershed above you is about 95 percent wilderness and the fact of the matter is, grazing has been excluded from most of that. Most of the leading scientists I've read say that area was historically a grass savannah, with an overstory of trees, and it's changed. We changed it, likely grazing was part of that, fighting fires was part of that and possibly a multitude of other things. And now it's locked off and we can't manage that because it's wilderness. All they can do is let it burn and obviously the Forest Service is going to let it burn. We've seen that over the past few years. I'll point out that the Cliff-Gila Valley did not historically have a riparian forest. I think it's a good thing we have it, but part of our problem is all those cottonwoods and willows are sucking up the water. I would be happy to discuss these facts with you or the board. I hope we keep this board together and continue to work toward developing this water."

Runyan said he fully accepted Bays' comments. "The state of the watershed is discouraging. No rain and a severe drought. I realize all that. We need a holistic viewpoint. We need the Forest Service to address it. We need to slow down the water. I think we're all moving in the same direction. We want a healthier watershed, and we want to develop the water."

Hutchinson discussed the errors in an article published in the Silver City Daily Press on May 28. "The comment that Ty made about us not communicating well with the public is well taken. We have not done a good job, but at the same time the reporting, other than Mary Alice's work, who is one of the last remaining true journalists in New Mexico, we get articles like this that perpetuate the misinformation. I'm not saying the author of this article is doing it as disinformation, but the fact they continue to do this, it indicates they really don't pay attention to the details."

He pointed to one element: "Since its formation in 2015, the New Mexico CAP Entity's expenses have consumed $2,496,757 of New Mexico Unit Fund dollars. In addition, since 2016, $5,121,209 have been spent on environmental impact study work."

"Of those two figures, most of the $5 million was spent on doing the environment impact study, and that produced a draft," Hutchinson said. "So, basically the Interstate Stream Commission wasted that $5 million when they cancelled the NEPA process to go forward and get a final environmental impact statement."

He continued to quote from the Daily Press article, with $64,509 being spent for public outreach, and "part of that was the ISC putting together a whole bunch of meetings over a nine- or 10-year period," Hutchinson said. On the amount of $730,359 being allegedly spent on legal fees. "A lot of that was eaten up by the Interstate Stream Commission defending itself against a breach of the sunshine law for violations of the Open Meetings Act. Another data point said that $4,936,111 were spent on technical vetting and studies. That," Hutchinson said, "was the vetting and studies of all the applications received for non-diversion alternatives funding. When you look at that article, it doesn't give enough detail. I realize the limitations of a newspaper about what can be put into an article, but it perpetuates the misinformation that the New Mexico CAP Entity was responsible for all these expenditures. And it's not true. In fact, the majority of these expenditures were shoved down our throat by the Interstate Stream Commission. So, it has been the Interstate Stream Commission that has been the most wasteful with New Mexico Unit Fund dollars. And now that they are in total control of it, it should be disconcerting to everybody."

Hutchinson said the article states the entity, "comprising 14 ditch associations, soil and water conservation districts, municipalities and the counties of Grant, Luna, Hidalgo and Catron, the New Mexico CAP Entity's defunct plan represented the fourth attempt at the building a permanent surface water diversion on the Gila River since the 1968 Colorado River Basin Project Act." This puts forward the idea that the board is made up of a majority of ditch associations, Hutchinson said. "The ditch associations are the minority membership, but maybe they should be the majority, because they were the ones that were shorted, as Ty said, in the original adjudication of the waters. To go on farther in the article. It states: 'The ISC retains fiscal authority over the Unit Fund and commissioners approved the agency's fiscal year 2022 Lower Colorado River Basin and Arizona Water Settlements Act work plan, which includes three cost elements, two of which rely on Unit Fund monies.'"

Hutchinson continued that the Legislature "saw fit to allocate $705,000 plus to the ISC, with $100,000 for technical services on existing and any new non-unit projects, which rest assured the ISC will spend every one of those dollars, even though, as Mr. Domenici said, it is likely no existing or new projects will be determined within the next couple of years, and $34,000 for legal services, of which the Interstate Stream Commission will also probably expend every dollar. Those two expenditures, and maybe others, will not produce any non-diversion projects nor will it produce acquiring any of the 14,000 acre-feet of water. So, we will continue to see the Interstate Stream Commission continue to waste the money appropriated by the federal government."

The date and time for the special meeting were discussed. Billings suggested June 15. Gutierrez said that works, but the only issue is that "we need all the invoices for legal fees by June 15, so they can be paid before the end of the fiscal year."

Domenici said if the entity meets on June 15, "you will get the invoice on June 15."

The special meeting was confirmed for 10 a.m., Tuesday, June 15.

Domenici asked for comments as soon as possible, especially from Howard, "so the can be incorporated and it would make the meeting go fairly smoothly."

Billings said it would be better for him, if the meeting could be held live. Others agreed. Gutierrez said he would call Grant County to set it up.

The meeting was adjourned.