NM CAP Entity met and went into dormancy…but not giving up 061521
By Mary Alice Murphy
A special meeting of the New Mexico Central Arizona Project Entity took place on Tuesday, June 15, 2021.
The main item on the agenda was to discuss and approve or disapprove changes to the final draft third amendment to the JPA of the NM CAP Entity.
Howard Hutchinson, representing the San Francisco Soil and Water Conservation District noted that he thought there were procedural items that needed to be addressed. "The bylaws have to be amended before we can approve the amended joint powers agreement. According to the bylaws, there has to be 30-day notice to all parties before the JPA can be amended."
Executive Director Anthony Gutierrez said if they amended the bylaws, it would still require 30 days notice before amending the JPA.
Hutchinson noted that there is only a suggestion in the JPA about terminating a party, but the bylaws have no provision for removing a party. He also noted that it requires two-thirds of the membership to amend the bylaws. A provision added to the JPA states that if a party does not reply to the amendment, it sets up a means by which the members can remove a party, but the bylaws don't allow removal of a party.
Entity Attorney Pete Domenici asked how that affects the JPA.
"Before we can act on the JPA, we have to change the bylaws to allow removal of a party," Hutchinson said. "We have several members that haven't participated in quite a long time."
Gutierrez said the reason "we added that last paragraph about removing parties was to expedite the approval of the JPA."
After approval of the previous June 1, 2021 minutes and approval of the agenda, and with no public comment, the next item was the old business of approving the third amended JPA.
Gutierrez commented if the JPA is contingent on approving the bylaws, "why should we even have discussion?"
Joe Runyan, representing the Gila Farm Ditch, said his worry is that his ditch group is devolving. "It seems like a huge project for me to get the group together to approve the amended JPA. I think it's best to leave it as it is."
Domenici said the primary purpose to amending the JPA is to get rid of the language identifying the Interstate Stream Commission throughout the document. "However, I think it's a fair interpretation as there is no longer a member of the ISC as part of the group. Much of the language is about budgeting. Maybe the ISC needs to clarify that it is not the first fiscal agent of the NM CAP Entity. Without the JPA the entity would not have any interaction with the ISC. The determination of the second fiscal agent would be made by the city of Deming. Meetings are not discretionary. My interpretation at this time is that the current JPA can stand. The ISC is automatically not part of this entity because of their resolution. As a way to remain intact as an entity, the current JPA can be appropriate."
Vance Lee, representing Hidalgo County, said any reference to the ISC is likewise eliminated by state law in HB 200.
Domenici said that was correct.
"I trust Mr. Domenici's opinion," Gutierrez said. "We were just trying to clean up the language."
"If there is no more discussion, we will maintain the current JPA, which I feel is the best way to go," Runyan said.
"I agree totally," Hutchinson said. "I think Mr. Domenici clarifies it. I think we're at an unhappy happy point."
Chair Billy Billings, representing Grant County, said the problem with trying to clean up the language at this point is "we don't know what things will be in two years, five years, eight years. I don't think the work you've done was wasted. We can come out of hibernation when it's appropriate."
John Sweetser, representing Luna County, clarified that "we will mothball the JPA. It's still there so it can be addressed at some future point."
Billings concurred that he also sees it as a hibernation. "We are the successor to the AWSA's (Arizona Water Settlements Act) Southwest New Mexico Water Study Group. When political winds change, the JPA and the entity can be resurrected."
No action was taken on the old business.
In new business the item was to approve the first amendment to the NM CAP Entity bylaws, but without the 30-day notice to the members, it also could not be acted upon.
The second item of new business addressed the retention of NM CAP Entity records. Gutierrez said he believes he has most of the records, although some are still in the hands of the former chair. "The records will be archived. I have documents from the ISC and the Bureau of Reclamation. Most are in digital form, but I also have 100s of pages of paper. And I have about 15,000 emails. I will complete the gathering of everything in secure boxes, and I can keep them unless another member wants to archive them."
It was moved, seconded and approved that the records remain in the hands of Gutierrez.
During the executive director report and member roundtable, Billings asked Gutierrez how he and Domenici have wrapped everything up.
"I think everything is wrapped up through the meeting process, from the ISC to the Bureau of Reclamation," Gutierrez said. "I'll save them on a flash drive. A few people have asked for the final engineering report. I have two invoices from the engineer, and I need one from the Daily Press for our last notice. Friday (June 18) is my last day of work. I took this job on because I knew the importance of developing AWSA water. I appreciate all the volunteer hours all of you have put in. Although the money to develop the water is no longer available, we are much closer to developing that water. I have loved the job, and I appreciate everything everyone has done, especially the staff in Pete's office."
Billings said to Gutierrez: "Thank you, Anthony, and also I thank a lot of the board members who have been at it for a long time, much longer than I have. We failed to get our message out. Our purpose is no different from what has been done for the past 100-150 years and that is diverting water for agriculture and livestock. I supported storing the water in an affordable way. I still think it makes sense, whether to drill a well and store it or in a unit, rather than let it go down to Phoenix to evaporate. Perhaps we can still store it with on-farm storage ponds."
Lee noted there would be a Heritage Waters meeting coming up on Monday, June 21, at 7 p.m.at the Virden community hall, with legislators from the area attending.
"We are kind of putting this entity to sleep," Lee said. "I suggest at a minimum we meet each year in January to elect officers and update our Open Meetings Act. I want to express my appreciation to Anthony and to members past and present. I see in the future that more people will see the need for more water. I hope this entity doesn't go away. Hopefully people will pick it up and put the information we've gathered for 17 years to good use."
Hutchinson said: "We're talking like we're giving up in securing the extra water, but our district received two proposals for on-farm storage. We members of the NM CAP Entity are the signatory on the New Mexico Unit Agreement. There may be more parties wanting to apply for projects. These folks will build their own storage using existing ditch systems. I don't see that we need NEPA, but we could still contract with the Secretary of the Interior for use of the water. I, too, want to thank Anthony and Pete. I look forward to other parties moving forward. I know other parties have expressed interest in using the water or drilling wells to utilize the AWSA water."
Billings said that was encouraging news. "Hopefully, that will happen sooner than later."
Ty Bays, representing the Grant Soil and Water Conservation District, said: "I thank you, Anthony and Pete. We have had a lot of opposition from environmental groups and the government. I think it is a huge mistake on the part of multi-million-dollar-backed environmental groups and the state and federal agencies to not take part in saving and utilizing this water. I think we will see an influx of people into the state, and they will need water. I'm not going to give up. Water is good for the region, whether it is for farming and ranching, homes or businesses."
Domenici thanked the board "for the opportunity I had to work on this project. I still think it is important for southwest New Mexico. I also thank the ISC staff for their support. The AWSA statute is still in effect, and it includes 14,000 acre-feet of water to New Mexico via the exchange with the Central Arizona Project. The exchange is quite workable where applicable. We have the CUFA (Consumptive Use and Forbearance Agreement). It was a complicated method to utilize water before the AWSA and CUFA, as we had only paper rights. Now we have a water management plan. People can use the AWSA and the CUFA. The New Mexico Unit Agreement sets up a methodology for applications to develop the water with the ISC and the Bureau of Reclamation. They are all available for the future. We have the EIS (environmental impact statement) essentially completed. It seems to have been fairly uniform that environmental impacts would have been minimal and utilization of the water often beneficial. The EIS hung up on economics, but the baseline is there for any environmental studies. The economics, when they fall into place, you still will have the AWSA, the CUFA, the EIS and the engineering. They will all still be available. Quite a few things are reserved and available."
He said he considered it a good action to choose the officers on an annual basis. "The records should be copied and put in the state archives, but the New Mexico CAP Entity should maintain control of the records. I will send a letter to terminate my contract, but I will still be available. I wish everyone the best of luck and hope this water will be utilized in southwest New Mexico."
Billings thanked Domenici for his time and effort. "Unless we have a reason for an earlier meeting, I propose our next meeting take place on the first Tuesday in January 2022, January 4, at 10 a.m."
Gutierrez said he, too, will try to make himself available.
The meeting adjourned.