By Mary Alice Murphy

At the Monday, June 11, 2018 meeting of the New Mexico Central Arizona Project Entity, the third item of business addressed the details of the project confirmation package for the NEPA (National Environmental Policy Act) process toward development of the New Mexico Unit, as set forth in the Arizona Water Settlements Act of 2004.

Howard Hutchinson, representing the San Francisco Soil and Water Conservation District, was the first to comment. "I read through this letter. I made the comment that the chairman would have to have the gavel ready to make sure I didn't go outside the standards of protocol. I tried to decide whether it was the Bureau of Reclamation and the Interstate Stream Commission trying to derail our project. Or it was just a sign of incompetence. Or maybe another alternative, maybe the joint leads are simply not familiar enough with the process to have delineated this stuff previously."

"The idea that at the 11th hour, the day before the notice of intent is published, we might have to do a separate geophysical study of biological or cultural services before we even do the NEPA, is unbelievable to me," Hutchinson said. "Over the past couple of weeks, I have received questions from the biological subcontractor to the NEPA contractor. He wanted to do a southwest willow flycatcher survey. I've been part of the recovery committee for the flycatcher for the past decade and a half. I received a request to get access to private property three days before the survey was to begin. Are there people so unfamiliar with us and what we've been doing for years? We do surveys every year. This is turning into a very expensive (I'm not saying the expletive) proposal. These are supposedly experienced contractors. The contractor is one of the highest cost contractors around. The biological subcontractor is one of the highest cost. It seems like a deliberate attempt to derail the project or they are just not knowledgeable. Having to do these cultural and biological studies before the NEPA means we need to do another NEPA and hire another contractor. The lack of professionalism, the lack of knowledge of what they are facing and the abject failure to get this process going is unbelievable. In January, the NEPA contractor was on board. Did he not know you have to do a southwest willow flycatcher survey between May 31 and June 3? It's remarkable how many delays are being put forward."

NM CAP Entity Executive Director Anthony Gutierrez said he didn't want to argue. "But the timelines we've had to meet have been excruciating. We have made amendments to the proposed action. The contractors have regulatory constraints. Providing information has been a challenge. We can't place all the blame on somebody else. It's happening here, in meetings. When we travel to Albuquerque, we want to be able to point out discrepancies being heard on this project. We're trying to provide information as quickly as we can. This should have been done over five years, not one year. We have one year to get the NEPA done. We have to provide information at the drop of a hat. I wanted to get the NOI done, so when the clock stops, we have enough time for comments before the Record of Decision."

"At the initial meeting with the contractor and Reclamation," Hutchinson said, "I mentioned there should have been a letter of invitation to all the cooperating agencies. The purpose was to give the cooperating agencies the chance to say yes or no. That letter of invitation has not reached the San Francisco Soil and Water Conservation District. If we had gotten it, we would have done an agreement and gotten permission from the landowners. Why were we not included in the meeting of the other cooperating agencies?"

ISC Attorney Dominque Work said new regulations under the Trump administration required early agreements with the federal agencies. It includes in the NOI in the Federal Register the invitation to other entities to be cooperating agencies by approaching the joint leads and creating agreements through MOUs.

Hutchinson said CPQ (certificate of professional qualification) rules require "the earliest possible notification."

Van "Bucky" Allred, representing Catron County, apologized to Gutierrez for having to bear the "brunt of my bad temper. It should have been to Reclamation and the contractor. I got a call from the contractor asking if he would get shot if he went onto private property. Why did we go with a contractor who has no idea about farmers, who know best about the river? I say to Ms. Work and the Bureau of Reclamation, have some respect for us. We want to use this water."

Work said: "Mr. Allred your point is very well taken and you're right. We don't have a lot of time, but there is no excuse for the way things are being handled. Given our compressed schedule, we may not have time to do it right."

"I will work diligently to do what is needed," Allred said. "But please respect the people I represent and work with."

Gutierrez presented the summary report. Stantec (formerly Occam Engineers) depicted the project, "so we can show it in public meetings moving forward. We also have the Gila Basin Irrigation Commission project, which is a cross-vane rock weir diversion. The Stantec report is more descriptive, with maps. This summary will accompany my letter explaining the removal of adjudicated water."

Hutchinson said he wanted to talk about the San Francisco River area. "We have about 7,000 acres of land without water rights. It's the logical destination for new water. We have tens of thousands of acres between the proposed Spurgeon project and the Arizona state line that we could develop with water. They are private lands with no adjudicated water rights. I have suggested to other entities to look for private lands within the three counties that have no adjudicated water rights. They are the most logical users of new water."

"We have farm lands that previously used water," Hutchinson continued. "Some have sold off their water rights, but they could use the AWSA water. This suggestion is not to convert any more water rights away from agricultural uses, which I want to preserve. But we can use the new water for new uses. Agricultural production is sustainable. I want to retain the potential to use the full 14,000 acre-feet of water allocated to the region to our area and all four counties."

He said he liked the summary report, but it wasn't as comprehensive as he would have liked. Stantec has the potential to get digitized maps in electronic format, but they can't. "It's frustrating. It's also frustrating for the joint leads. We have provided this information over and over and over again. We should have been told years ago how you needed the information. Yet here we are at the 11th hour, with the complete information not having been provided to ISC or Reclamation. I'm getting very frustrated at providing information and not having the follow through, so the contractors perform at the level we're paying them."

"I'm a volunteer, although I do get mileage from the SFSWCD to attend these meetings," Hutchinson said. "I'm maybe getting paid 10 cents to 15 cents an hour. I would like more direction from your office to crack the whip."

Gutierrez said he did contact the Catron County Assessor's office, but they don't have digitized maps. They are in the process of getting AutoCAD, "but I still got PDFs of the maps. I can appreciate your vision of providing water to land without water rights, but there's no pipeline and no way to get the water to them. On the Gila, maybe somebody wants a subdivision on top of the mesa, but it's not a project. We talk about the potential of industry, but we have no ability to see into the future. We've been working diligently at getting good maps. I've been working on 'What's the project that will be studied in the NEPA process?'"

Hutchinson said he would alleviate Gutierrez's concern that it is a vision. "It's been in the plans of the San Francisco Soil and Water Conservation District for at least 10 years. My well was transferred off the Pleasanton Ditch. The subdivision on the mesa in the Gila Valley is not just a vision either."

Gutierrez said: "We don't know how many parcels will use the water. We need the specifics for the project."

"That's why we said we want the entire 4,000 acre-feet on the San Francisco and the 10,000 acre-feet for the Gila," Hutchinson said. "That's what you do the analyses on. How we use the water, where it is diverted and used is of no consequence."

Gutierrez noted that Catron County has a diversion at Weedy Canyon, but it won't hold 4,000 acre-feet and it doesn't have conveyance to where it will go. "My position is that the usage and amount don't match to the infrastructure we are proposing. I took the proposed action and did my best to put the project areas in this document. The joint leads are requesting to know where the infrastructure is."

"What we're looking at is only one component to utilize the 4,000 acre-feet," Hutchinson said. "Where is the lack of information? What you're talking about would be in the economic benefit analysis."

Gutierrez said the 4,000 acre-feet and 10,000 acre-feet are still in NEPA, "just not in the summary report."

"The proposed action acquisition of the 4,000 acre-feet and how we utilize it will be in the cost-benefit analysis," Hutchinson said. "Where we're going to store it is on Figure 5. It will be groundwater storage. I'm not seeing the problem. Maybe Anthony and the engineer need to sit with us to get a clear picture."

Joe Runyan, representing the Gila Farm Ditch, said: "You're saying anywhere downstream someone could put in a well. Obviously, Anthony can't predict who's going to put in a well. How can you predict where the groundwater diversion is going to happen?"

Gutierrez said in the AWSA, a well is considered a diversion. "Where we are proposing in this summary is downstream diversions from Spurgeon or Weedy. We don't know where they will be, but we need to analyze the 4,000 acre-feet."

Runyan noted that conceivably Silver City could buy AWSA water. "The town is using water from well fields on the Gila side of the divide and taking it to Silver City."

"This summary has the project areas," Gutierrez said, "but the programmatic language is to look at 10,000 acre-feet and 4,000 acre-feet for immediate and long-term usage. If someone punches a well, they may need a supplemental document to NEPA."

Allen Campbell, representing the Gila Hotsprings Ditch Association, said: "We've been talking about the 'color' of water. This document is one step toward securing more water. It's not intended to be a roadmap for the 4,000 and 10,000 acre-feet. Three years ago, we didn't want a billion-dollar project. This document will free us from the yoke of a lot of problems. I think it's one more stop that gives us the foothold we need."

Gutierrez said it was a draft document, and the group could potentially add language for future uses, describing how the water potentially could be used. "We can use parcel maps where they can be utilized."

NM CAP Entity Attorney Pet Domenici Jr. said he heard that the San Francisco has the potential to divert AWSA water from groundwater. "I think diverting AWSA water from groundwater seems inconsistent with storage. Why so expensive a storage unit to serve about 200 acres?"

Hutchinson said: "These facilities have multiple uses. Flood control is factored into the costs benefit. It has little to do with the environmental impact statement. The impact of the infrastructure doesn't change with the uses. I think the language encompasses what we need."

Gutierrez said the other impacts have to do with delivery and how much water returns to the river. "How it's used and how it's released will have to be answered. I do have maps in PDF format. I will make sure they are in the report."

Vance Lee, representing Hidalgo County, moved to approve the submittal of the project confirmation package. After a member's second, it was approved by the membership.

During the member's roundtable, Hutchinson said a lot of people might get bored with his dissertations. "I think the CAP Entity has been accused of not vetting these procedures. Others are also contributing. I think it's good to deliberate in open meetings to give a clear view of what we're discussing. I think the public needs to know exactly what goes into our deliberations. Albuquerque is happy their forefathers did the San Juan/Chama Project. We're the stepchild of the state. Hopefully we will get the benefits of this additional water, and our descendants will benefit from it."

Campbell said the discussion showed some dissension and strong feelings in the larger picture. "How many of you are familiar with the tyranny of the majority? This has a lot to do with what we're doing. Thomas Paine in the 1700s talked about the phenomenon of the democratic tyranny of the majority. Ignorant, philosophical people decide they have a better idea and force things on other people. This is a good example. In New Mexico, we have few resources accessible because of a lack of water. We have people in a republic decide for us. We select people to do this for us. These four counties have selected a body of us to made decisions for the good of all the counties. We are fighting those with most of the money. In the end, in the future, the fact we have to have more water for our offspring is paramount, and we have to do it properly."

He said the Gila River is really low. "It's flowing downhill and most is being used by the cottonwoods and willows. The water withdrawal right now for the trees is environmental water equal to about 7,000 acre-feet. We're not proposing moving it. What we’re doing today is trying to allow the best environmental end. The weather of this area in the future is tried to the water."

Gutierrez said he had another topic of discussion. "We already requested the authority for planning. We haven't discussed construction, maintenance and operations and whether we want to request that authority. We need to recognize if we want to take on that authority. I can get with the attorney and draft something."

Domenici said Deming as the entity's second fiscal agent has to be comfortable with it. "Bureau of Reclamation requirements are different from what we might think of."

David McSherry, representing the city of Deming, said Dr. Ward of New Mexico State University is developing a business plan for the entity. "Wouldn't we need that before we talk about operations and maintenance?"

Gutierrez said most of the data comes from the engineers. "The cost analyses will incorporate the exchange costs, the O and M, and how much offset we will get from return flow. The engineer's report will be based on the functionality of the system, the crops and benefits, for instance, how beneficial it would be to raise pecans rather than alfalfa. Whether to use flood or drip irrigation. The business plan might give us guidance. I have just presumed that the NM Unit will be owned by the NM CAP Entity and might potentially become a political subdivision of the state."

Hutchinson said an additional fiscal agent might be warranted, for instance Catron County or the San Francisco Soil and Water Conservation District.

McSherry said a former New Mexico Representative, Joe Stell, had served on a committee that created a booklet, a primer for the Legislature to understand water. "This little book just floated to the top of my desk. It said: 'Any water left in the river unused in New Mexico will go down to Texas for its benefit.' In 12 to 15 years, we will have a new Legislature, with new committee chairmen. We should all try to educate people at the Legislature as you talk to your committees and entities."

A young woman, Elysia Drew, said she had arrived late and missed public input. She asked to speak. "I hear Mr. Campbell about the tyranny of the majority. What about the tyranny of bad ideas? It's not bad to be concerned about the eco-system. I'm concerned about the species loss at Elephant Butte. Why promote a diversion before you've had the chance to study it and how to protect the vegetative and animal species from the diversion?"

The next meeting is slated for July 3, 2018.