By Mary Alice Murphy

After saying the Pledge of Allegiance and approving the agenda, a quorum of the members of the New Mexico Central Arizona Project Entity elected officers for the next year.

Billy Billings, representing Grant County, will continue as chairman, with Haydn Forward, representing Catron County, elected as vice chair, and John Sweetser, representing Luna County, elected as secretary.

Members also approved the minutes of their last meeting, held Feb. 1, 2022.

During public comment, Buddy Eby, mayordomo for four ditches in the Mimbres that provide water to 120 acres, said he was also representing the Tahoe and Perrault ditches. "We haven't gotten any funding yet since the August flood. We need to repair our ditches. This is our livelihood."

Jimmy Greer said he represents 160 acres that had more than $150,000 in damages. On the Lower Mimbres, FEMA estimated $40,000 in damages, he said. "There is $1.2 million to $2 million of damage on the Mimbres River alone." He reported that Grant County Emergency Manager Justin Gojkovich and Mr. Roybal had assessed for only one day. It's been five months since August. We have submitted our damager on 11 ditches and haven't heard a word back."

Billings noted that the flood damages are on the agenda, and everyone would be discussing the issue.

Howard Hutchinson, representing the San Francisco Soil and Water Conservation District, asked Eby and Greer if they had contacted the Farm Service Agency and the Natural Resources Conservation Service/

"Yes, we have talked to them," Eby replied.

Hutchinson said he believed the Farm Service Agency had funding. "You need a sponsor to activate the soil and water conservation district. We activated it on the San Francisco and have spent some money."

"We were assessed," Eby said. "We're just waiting."

Greer said the ditches were silted in so badly, "we can't get water to our fields."

Billings asked to continue on with public comment, because the issues would be discussed later.

Ronald Strain said he represents four ditches on the Upper Mimbres. "We have $80,000 in damages. Everybody comes in and says how sorry they feel about the damages, but there is no funding." He said Mr. Pritchard has built up the riverbed for outdoor recreation and spent $500,000 on it. During the daytime, good people use it, but during the nighttime, it's a dope haven. Everything I've done on my ditch is out of my pocket to fix. It was a total loss last year and this year. We are relying on our fields. They are on hold until we get funding. If we try to help the issue with improvements, then we are no longer eligible for funding."

Ty Bays, representing the Grant Soil and Water Conservation District, asked what the recreation project was.

Strain said it was to make habitat for the Chihuahua chub, with help from the state Fish and Game Department. "College students were doing the survey. They said they weren't allowed to say what the survey showed. One said he wasn't supposed to say, but they hadn't found any Chihuahua chub. We haven't gotten a penny to fix our ditches. I pay taxes."

Under old business, the agenda item stated discussion and questions on House Bill 200, which was passed by the Legislature a couple of years ago.

Dominque Work, ISC (Interstate Stream Commission) attorney would present the New Mexico Unit Fund report summary.

Billings asked members to keep their questions until after the summary. "I don't think we can solve the issues, but we can come up with a potential solution."

"In respect to the federal money that came through the federal Arizona Water Settlements Act (AWSA), the New Mexico Unit Fund still has a balance," Work reported. "As of Sept. 30, 2022, it held $77.839 million. I think it's around $80 million now. We are still working with the federal government on the final reconciliation of the balance. The funding was to be paid out for 10 years starting in 2012 and ending in 2021. We needed to do a true up. It is still not resolved. Hopefully, it will be resolved in 2023. The New Mexico ISC has done nothing to disperse any funding in the past two years. The Legislature allocated the NM Unit Fund money to the Water Trust Board to set up the process to get the funding to projects in the four counties of southwest New Mexico [Grant, Luna, Hidalgo and Catron]. The Water Trust Board has done nothing to set up the process. We sent them a draft last summer, but it hit a brick wall. We recently we contacted the New Mexico Environment Department and the Finance Authority, but they said they could do nothing, because they don't have the resources, staff, money or time to do what HB 200 mandated. Sen. Siah Hemphhill is trying to put a bill in to get the money to the Water Trust Board, so they can set up the process."

Billings asked members to hold their comments, but he opened the floor to questions.

Vance Lee, representing the Hidalgo Soil and Water Conservation District, asked about the $300,000 that the ISC was taking out of the NM Unit Fund. "How is it being spent?"

Work said it was put into the ISC budget. "It was originally for staff time to deal with the New Mexico Unit. We had a couple of people that it was used to pay the salary and expenses. One position is now vacant. We've done nothing in two years, but there is still one position. It partially paid for a person to come down here to assess damage. As far as I know, it's actually $350,000. I'll be glad to get details."

Lee said he was wondering if an employee works enough in the area to expend the amount.

Work said the money is budgeted and watched carefully. "I'm not sure if the funding is not expended if it reverts or carries over."

Billings noted that at its May 26, 2022 meeting, the ISC approved the Colorado River Basin work plan and the $352,000 for potential studies on the non-New Mexico Unit projects.

Work said there were still 16 non-NM Unit projects that have not been closed out. "The Hurley Regional Water Plan project is still not closed out, for instance. As the HB 200 process has not moved on, we want to make sure you can use that money for those projects."

Forward said Work had indicated the fund has about $78 million in it. "It looks like $49 million is invested in the stock market, with $8.3 million seen as an increase. Is it included in the $78 million?"

"It is included in the $78 million," Work said. "The fund has been doing well. Whatever interest is made is re-invested in the fund."

Joe Runyan, representing the Gila Farm Ditch, noted that in 2004, Congress allocated AWSA funding with certain confines. "The New Mexico CAP Entity was neutralized by HB 200 and the process stopped. "Is there any oversight from Congress that the funding is not being used properly?"

Work replied. "In 2004, $66 million, inflation revised, was set aside for the New Mexico Unit. The funding was dispersed over 10 years. We are wanting to get reconciliation of that funding amount. There was also a second pot of money for the New Mexico Unit construction, if a record of decision to create the unit was finished by the end of 2018. When the decision was made not to pursue the Environmental Impact Statement completion, the second pot of money was forfeited. There was also a third pot of money for gauges and instrumentation, which I believe is still available. There has been over the years, no oversight from Congress. Generally, there are committees in Congress that are supposed to exercise oversight and figure out what's going on. I don't know how many members of Congress from 2004 are still there. We reached out to our congressional delegation to get information on where the last pot of money is. The best way to get oversight is through our delegation."

Runyan said that was good information for those "of us on the board wondering how to understand the machinations of HB 200 going forward. We need to talk to members of Congress from where this money originated to get it back to its original purpose."

Work noted that AWSA directed the state Legislature to create the New Mexico Unit Fund. "That's how the Legislature got in. The Legislature was dissatisfied with the way the ISC was dealing with the money, so they brought forward HB 200. They took language from the AWSA that talked about the successor to the Southwest New Mexico Planning Group and decided to make the Water Trust Board the successor. Sen. Hemphill is trying hard to get the funding loose."

Allen Campbell, representing the Gila Hot Springs Ditch Association, said: "Let's cut to the chase. HB 200 has problems with the supremacy clause between the federal government and the state government. Not much is being done because the money cannot be spent by statute without approval by the New Mexico CAP Entity. $9.1 million was approved by the entity for the various non-diversion projects. I'm questioning the $350,000 being withdrawn by the ISC. It was originally approved in consultation with the New Mexico CAP Entity, but that time is past. I think these withdrawals of this money should be approved in consultation with the New Mexico CAP Entity. I think it's why the money has not been used by the state because it is supposed to be used in the four southwest counties. I think we're at an impasse. It would be difficult for litigation, but I think we could prevail if the money were used anywhere beyond the four counties."

Billings said he had a question for Work. "I think I heard you say that Congress tasked the New Mexico Legislature to form the New Mexico CAP Entity." He read from the document where is said the Legislature was tasked by Congress to have the ISC create the New Mexico CAP Entity to hold certain authorities pursuant to the Arizona Water Settlements Act.

Work said she may have misspoken. "Congress tasked the New Mexico Legislature to create the New Mexico Unit Fund, not the New Mexico CAP Entity. That is the place where Congress gave responsibility to the New Mexico Legislature. And in reply to Mr. Campbell, the law HB 200 states that the ISC has to consult with the Water Trust Board. We are mandated by law in HB 200 to consult with the Water Trust Board, no longer the CAP Entity. We don't have to like it, but we don't have a choice."

Billings said he believed the entity could have a valid challenge against HB 200 in court. "We don't have the money to challenge it, and we understand the ISC has to follow the law."

Forward said he is still trying to keep track of the money coming into the New Mexico Unit Fund. "I see you are still looking to true it up. I see the construction portion, which we lost when we didn't decide on a unit. But are there other pots of money?"

Work said when the Act passed, they didn't know what index to index the money on. "It grew up to $90.4 million with the last payment in 2021. In 2012 when the money began flowing, we didn't have an entity, and we didn't have the New Mexico Unit Fund and the original $6 million in the act had grown with inflation. So, the Bureau of Reclamation disperse it, at 1/10th of the full amount with $9.04 million per year starting in 2012. When we in discussion with all of you and Reclamation about a unit, because that project was in flux, we still didn't know what construction index to apply. When we saw the last amount, we agreed with Reclamation to use the Construction Cost Denver index to true it up. Part of the problem is that Reclamation and ISC didn't agree on how much we were owed. ISC thought it was about $21 million and Reclamation estimated it at $13 million. I suspect it will be between the two."

Forward noted that was a substantial amount. "Perhaps that's why there is a lack of communication."

"We want to reconcile it, but Reclamation has slowed us down every step of the way," Work said. "That's why we went to the Congressional delegation."

Hutchinson said he had a question about the allocation of funds from the New Mexico Unit Fund to the ISC. "I have read through the AWSA and HB 200 many times. I see no authorization to allocate funding to the ISC."

Work said the ISC used specific language in the AWSA to do the allocation.

Hutchinson said he understood that allocation, but it was for the EIS. "I see no authority in the current HB 200 or the New Mexico Unit Act to authorize a withdrawal to the ISC."

Work agreed there was no specific language for the ISC. "At the time when Craig Roepke was ISC director, he had no staff. He had to hire staff, and it was considered to fall in the AWSA to utilize the funding for activities of the Planning Group. The CAP Entity did not exist, and the funding was considered to be for planning to lead to the EIS. I am not debating the use of funds since the project was abandoned."

Hutchinson said he understood all that. "During Gov. Richardson's administration, he insisted that half a million dollars from the Fund be used to evaluate non-diversion projects. It's an appropriate way to do it through the state, but ever since then funding has been drained out of the New Mexico Unit Fund."

Work said the Legislature has decided recently to give the ISC more funding. "The problem was that I think they were happy the money was coming out of the New Mexico Unit fund. I will get you the information from the past couple of years."

Campbell that was what he was alluding to earlier. "I was on a committee with Howard and you, Dominique, early on. I distinctly remember how we were going to fund some of this and how to get the CAP Entity approved. I remember there was an issue we had to vote on as the CAP Entity to approve the funding to the ISC. This was approved by the Entity."

Work agreed that the CAP Entity voted every year to allocate the funding to the ISC.

Billings asked if HB 200 changed all that.

And Lee asked if the funding was subject to New Mexico Finance Authority approval.

Work said she would find out.

Billings reiterated that the funding was allocated to the four counties. "If staff members are being paid for working in the four counties, we would like to know that."

Work said the ISC had only one person working on projects from the four counties.

Billings noted that some of the projects funded by the original allocation of $9.1 million for non-diversion projects had been completed, but others had not. "If this $90 million that has now turned into $80 million, could it have been used for flood damage projects? Could it be used if it were not tied up with the Water Trust Board?"

"I cannot speculate on that," Work replied. "The money in the New Mexico Unit Fund is for the four counties. The ISC is looking at projects. The HB 200 process is not moving fast at all. I encourage you to contact Helen Sobien or Jonathan Martinez, who is the ISC delegate to the Acequias Association." She gave his email as Jonathan.martinez@ose.nm.gov.

Billings noted that Aaron Sera, Deming city manager and former CAP Entity member, had had experience with the Water Trust Board and "told us if HB 200 passed, it would be an onerous process to get funding. I passed that information on to our senator and she's now putting bills forward to get the process moving. Is there any way to get help quicker to the farmers for the flood damages? And with the funding down to $80 million from $90 million, with inflation, it's probably only worth $60 million. I have talked to the commissioners, who voted to support HB 200. I don't see anything on the legislative agenda to clarify the funding."

Work said most of the trend downward from $90 million to $80 million came from the work done for the EIS. "We spent about $14 million for expenses. The fund has actually gone back up because of market increases. If we can get the rest of the $13 million to $20 million into the fund, that would help, too. I encourage you to contact your local representatives and senators and be vocal about no movement by the Water Trust Board. The ISC staff has looked at projects. We proposed a way to simplify the process for the applications. We sent it to the Water Trust Board, and they said they couldn't do it. Contact your representatives, senators and the governor's office. The Water Trust Board is just tying up the money that should benefit the region."

Hutchinson said he had comments concerning the non-diversion projects. "It seems that through what was enacted by HB 200, everything will be non-unit, non-diversion projects. With the rare exception, projects that were funded have not increased efficiency or increased the availability of water. The effluent reuse by Deming and Santa Clara have increased efficiency. The city of Hurley well project so far has been an abysmal failure. The well drilling was to acquire the use of water out of the Mimbres Basin. The effluent reuse in Bayard is no longer viable. In Hurley, I understand they are looking into asking for capital outlay, but with the water rights that Freeport McMoRan gave them, they may not have to. The ditch projects did increase efficiency, but the entire original purpose of the AWSA was to bring additional water to southwest New Mexico. Without additional water, there will be no expansion of population and economic development. The rest of the state is spending billions to defend against Texas. Also, the pipelines in the state are increasing. Southwest New Mexico seems like the stepchild of the rest of the state. The reality is the New Mexico CAP Entity still exists. We should look for a way to get our allocated 14,000 acre-feet of water. Phoenix, Santa Fe, Albuquerque and Las Cruces say 14,000 acre-feet is a drop in the bucket, but it would be an economic boon for southwest New Mexico. I think Congress needs to do oversight on the state. HB 200 amended federal law. Maybe going back to talk to our congressional representatives would help. Maybe New Mexico should have its hand slapped."

Billings asked if going to Congress should be done by individuals or as a group to look for oversight. "In the report, it says the New Mexico CAP Entity became inactive. What is the best way to proceed?"

Bays said he thought it would be appropriate to approach Congress as an entity. "We can develop a letter to the Natural Resources Committee on the federal level to look into the issue. I move we have Howard draft a letter to Congress to request oversight."

Lee said: "There is a lot of ability sitting in this room. How will we circulate a draft?"

Bays said the intent is to have Hutchinson create the draft but get feedback from the members. "I don't think we would need a meeting to approve it."

Hutchinson said he would feel uncomfortable without reconvening as a body to approve. "I think we could reconvene virtually. I think we need formal approval of the final draft to be in full compliance with the Open Meetings Act. I would circulate the draft and then we can hold a virtual meeting. I'll create it, get feedback, then in a meeting we can have an open discussion in maybe an in-person meeting rather than virtual."

Campbell said he concurs with a committee then an open meeting to discuss and approve.

Billings named Hutchinson, Runyan and Bays to the committee. Forward asked also to be involved, so he was added.

"Many of us have seen success in legislative matters," Forward said. "When a group gets an endorsement from the larger group made up of municipalities, counties, ditches and soil and water districts."

Billings said he believes each representative could take the letter to their agencies to get support.

The motion was approved with Hutchinson, Runyan, Bays and Forward on the committee to draft the letter.

Lee asked who the letter would be sent to. Bays said he believes the intent is to send it to the Natural Resources Committee.

Hutchinson said the previous day the Natural Resources Committee had finalized the members and staff. "I know the staff. I know they are meeting with Rep. Stansbury. I've made contact with Rep. Vasquez. Stansbury is on the Natural Resources Committee. I know she was in favor of HB 200, so I'm not sure how open she would be to oversight, but it is her job."

Campbell said he thinks a decision on whether to send it to others should be part of the meeting discussion.

Hutchinson said he understands that on the state level, Hemphill is looking for an appropriation from the General fund to the ISC and Water Trust Board to accelerate the process.

Under new business, the agenda called for discussion on the 2022 flood damage.

Hutchinson asked Work before she left the meeting if the ISC has programs of loans or grants for the flood damage.

Work said she would encourage a 90-10 loan, and she suggested they contact Jonathan Martinez.

Forward had one more question for her. "The acequia repairs are based on fire damage. Would there be additional funding?"

Work said the ISC has all sorts of projects on acequias. "Jonathan has a lot of money for projects."

The discussion turned to flood damage.

Billings said a lot of the members knew more than he did about the damage issue. "A resident asked the Grant County Commission to declare an emergency. We did and FEMA came in. Our county emergency manager has been heavily involved."

Forward said FEMA came to Catron County for one day. "Any communications with them have gone into the abyss."

Lee said two canals in Virden were affected. "One was wiped out and the other held pretty well, with the head gauge holding. Out of the $750,000 the county is supposed to get, FEMA came up with an estimate of $136,000. The paperwork is more extensive than the damage. All of the attention we got was before the election, with not much since."

The members approved the Open Meetings Act resolution.

Back to the flood damage, Rose Shoemaker, representing the Fort West Ditch [Editor's Note: I'm not sure about this.], said the ditch owners in the Gila Valley had had the same experience. "We appreciate the emergency declaration. Rep. Luis Terrazas and Sen. Siah Hemphill came out. We understand we did not qualify under FEMA, because there was 'not enough damage.' I spoke yesterday with Ms. Hemphill, when she called me. She told me I was misinformed as the money allocated was not for the legislature to deliver to us. She said she was working hard to amend some bills on the floor to get money to us immediately. What I see in the Gila is if we don't get water into the ditches within the next couple of months, I see total destruction of the agricultural economy in the valley. I see no vehicle to get the $750,000 to us."

Billings said there was interest in the county to help out, but because the funding is reimbursement based, it was too much of a risk for the county. "I'll try to talk to our emergency manager, Justin Gojkovich, to see if we can help."

Runyan said he and Shoemaker had testified to see if they can get capital outlay for improvements. The Natural Resources Conservation Service would do the work and get reimbursed. The Farm Service Agency supposedly can get a loan to work and be reimbursed. The New Mexico Department of Transportation has funding to clean the debris out of the ditches.

Billings said a contractor from the NMDOT was planning on getting a work group together within a couple of weeks to do the work.

Strain said he believes the DOT is the "best shot, but where's the money? U.S. Sen. Martin Heinrich is sending a representative here to see what he can do to help. Terrazas says he is also working hard to get funding together, but time is passing quickly."

Shoemake said they are hopeful for capital outlay.

Lee said it was the first he had heard about NMDOT contracting to clean the ditches.

Runyan said the contractor has been chosen. "Once he gets the contract, he will hire more contractors."

Forward said the $750,000 process is one the county requests for emergency funding, which went to the governor, who signed it. "Although it is allocated, there is no conduit to get it to us."

Bays said the Grant County Soil and Water Conservation District also signed the request. "It requires a match. It occurred not just because of the flooding. It was because of the FIRE, the Black Fire in our case. The Forest Service spent millions on the fire. The fire is what caused the flooding damage. Had it not been for the fire, these ditches would be intact."

Billings said the flood event was 5,000 to 30,000 times a normal flow.

Campbell said in 2012, after the Whitewater-Baldy Fire, "since then this is the first year that we have had a beneficial flow. We have had 10 years of dealing with mud and silt. We have a small ditch, and we have removed mud constantly out of a functional ditch. We have moved 200 to 300 tons of mud from a 1,000-foot-long ditch. The problem for the newly damaged ditches is not just this year, but for the next 10 years. On the Mimbres River and on the Gila, it's not going to be fixed in a year. When you build new ditches, build them right. I always have put my own money in. The East Fork hammered everyone this year. The West Fork has been flooding from the Whitewater-Baldy Fire. Whatever you do had to be long-term. Look at where you can put in a restriction."

Leah Villarreal, Silver City Farmer's Market manager, spoke about the "30 farmers who provide produce for EBT card holders. They bring in money for themselves and produce for the community. This year, we have seen a decrease because of the flooding. It impacts Silver City and the customers. If we don't use federal funding this year, we get less next year. We have reached out Rep. Terrazas and Sen. Hemphill."

Shoemake said she would love "to see us send a letter to keep the Forest Service from burning down our forests."

Billings appointed another committee to write that letter. Members are Shoemaker, Bays and Campbell.

The next regular meeting is slated for Feb. 6, 2024.