By Mary Alice Murphy
Members of the New Mexico Central Arizona Project Entity met on March 5, 2019 to hear and discuss, among other agenda items, a presentation by Gila National Forest Supervisor Adam Mendonca and Forest Planner Matt Schultz on the issue of the potential Wild and Scenic designation of segments of the Gila River.
One person gave public comment prior to the presentation. Benjamin Segovia of the New Mexico Farm Bureau introduced himself. "Part of my responsibility is dealing with water issues. I'm looking forward to working with the Interstate Stream Commission and this board."
"I am here to make sure that folks on the New Mexico CAP Entity understand what the Forest Service is doing with the planning process," Mendonca said. "We are told by the Planning Rule that we must evaluate portions of the Gila River within the forest. The Wild and Scenic River designation that you heard a report on last month is completely separate from what we are doing with the Forest Plan revision. We are legally required to do a study on potential areas that may be determined eligible for wild and scenic river designation, as well as assigning potential classification, such as wild, scenic or recreational, and we also determine suitability. We are not going to complete the suitability phase and will not recommend any changes. We did a study in 2002, and the reason we're doing it again is that there may be changes since then."
He said the Gila trout, for example, is important as an endangered species. "We have had a lot of fires and rivers that had the fish may no longer contain any. Some rivers are not included in our study. We must evaluate any waterways that are named on USGS maps within the forest, excluding private property. To be determined as eligible for wild and scenic, a river segment must be free-flowing and possess one or more outstanding remarkable values."
Mendonca said free-flowing means existing or flowing in a natural condition without impoundment, diversion, straightening, riprapping or other modification of the waterway. However, the existence of low dams, diversion works, or other minor structures does not automatically bar its consideration as a recreational class river.
Outstanding remarkable values include scenic, recreational, geologic, fish and wildlife, historic, cultural or other similar river values that are unique, rare or exemplary and is significant when compared with similar values from other rivers at a regional or national scale.
"We take each stream segment and determine if it is a special place," Mendonca said. "The wild and scenic designation tries to preserve the unique qualities of a river. If it is classified as recreational, then we want to manage it for such uses. Because we are not determining the suitability of the designation, we are not recommending any segments to Congress as wild and scenic. We will get through the eligibility portion, but not the suitability."
In answer to the question about what a determination of "eligible" means for the management of the river corridor, Mendonca said it would be managed to protect its free-flowing condition and the outstanding remarkable values, if it is determined eligible. It would also be within Forest Service authorities and subject to existing rights.
"We are really looking for stakeholder input at this point," Mendonca said. "What is special or why is it just like other rivers? If a segment of the river was eligible in 2002, we need to know the why."
CAP Entity member Allen Campbell, representing Gila Hotsprings Irrigation Association, said in only one instance was the Gila determined eligible in 2002. "The selected segment runs through private property and then into the Gila Wilderness. It was Willow Creek."
Mendonca said the process they are going through now is only on federal lands and if it has a name on the USGS topographic maps.
"I have a diversion upstream from the only segment that is on your proposed wild and scenic eligibility," Campbell said. "The segment ends at my property line. It has been designated as a potential site that does include a diversion."
Mendonca said that in the 2002 study eight segments were considered eligible. He listed several of the eligible ones from 2002. Diamond Creek, South Diamond Creek, Holden Ponds, Las Animas, West Fork of the Gila, Middle Fork of the Gila, Spruce Creek and White Creek. "If you know of any items that make a stretch ineligible, please let us know."
"I personally believe those selections from the past were effective and quite true," Campbell said. "The basic problem with wild and scenic is that the segments are already protected by the wilderness designation. They are already thoroughly protected and so is the habitat around them."
Ty Bays, member representing the Grant Soil and Water Conservation District, asked if they reviewed Diamond Creek, "are you going to evaluate every creek or running water."
"Yes, if it has a name on USGS, we are legally required to evaluate every one of them," Mendonca said. "It's a large task. If you look at the map, not all of those marked even have water in them year-round. "
Bays asked if a river were deemed eligible, the forest would manage it and perhaps would not allow a diversion.
Mendonca said: "We look at the characteristics of the diversion. Yes, it might impact the eligibility. We have to maintain, if we determine they are eligible, but we also have to maintain existing rights. It's not clean cut. If there's a stretch where a project is planned, there will be a lot of conversation. And I can't promise how it would come out.""
Bays said it seemed to him that New Mexico Wild is wasting its time if a stretch of river is already eligible. "Many of them have endangered species on them, like the southwest willow flycatcher. Where livestock have been removed from the river, there are only a few flycatchers on your land. But they are thriving on private land that has the arguable the highest number of livestock. I have another question—11 percent of New Mexico Wild's budget comes from you. Is it a competitive process to get a contract? Can the cattle growers organization get such a contract?"
Mendonca said that the 11 percent is not coming from the Gila National Forest. "In Region 3, which encompasses New Mexico, Arizona, Texas and Oklahoma, the Forest Service has challenge grants. None is scheduled on the Gila. They are not doing work for us. They haven't worked on the Gila since I've been here. We partner with lots of folks. We have an interest in partners. It is open to anyone, but it is competitive."
Bays asked if the results could be predicted. Mendonca replied that they have specific metrics, such as solitude. "They hike through the forest and report on how many people they see. We do what Congress asks. And yes, we do pay them for it."
Van "Bucky" Allred, representing Catron County, asked about the outstanding remarkable values.
Mendonca said the outstandingly remarkable values have to be unique. "In my opinion, we shouldn't designate every mile of stream as wild and scenic. It has to be special. We should be able to say: 'Wow, that is really special.' If this stretch doesn't have anything that's any different from any other stretch of the Gila, then it shouldn't be considered."
Allred asked about the Gila trout.
Mendonca said it is threatened and not endangered. "Several streams are more important to us, where one strain of the trout is different from the others."
Allred said he understands that Game and Fish wants to turn the Glenwood Hatchery into a hatchery for Gila trout for recreational purposes. "Fish and Wildlife comes in and poisons streams to get rid of all the fish. They did it on the Big Dry. Are others being considered for that?"
Art Telles, Gila National Forest biologist, said the Glenwood proposal is for a mixed strain of the Gila trout. "We have done genetic tests on various strains. Once it is listed as threatened, we can use the 4B rule where people are allowed to fish in certain areas. Recovery teams sometimes allow fishing. Because the streams flow into one another, the strains have become mixed."
Bays said that was a trick by the multi-million-dollar environmental groups, to divide the strains, so they can keep a species on the endangered list. "A mule deer in the Hachitas is still a mule deer, but it's a different strain."
Campbell said the Gila trout was pure on the Gila River until the Jenks cabin hatchery, where they brought in rainbow trout. "In 1976, my wife was guiding for the Fish and Wildlife Service, and we found fish on Iron Creek. Every one of the streams had their own populations at the top of the streams. Every one had slightly different genetic differences. Barriers kept the rainbows out. The only population of Gila trout was on Spruce Creek When the gold miners were there, they took West Fork fish and put them in Spruce Creek."
Allred said he has lived his whole life in the area. "The only changes I've seen came with 100-year floods. But after the fire, we had nothing. We don't care what kind of trout it is. We only want it to be fishable and catchable. I commend you for your work on the Catwalk. That helps our economy in Glenwood. Don't lock people off the forest. New Mexico Wild would lock us off."
Joe Runyan, representing the Gila Farm Ditch, said the biggest tool the CAP Entity board has is the Gila watershed. "We don't want to design anything that will kill species."
Mendonca said the forest tracks the health of the watersheds. "We treat them to improve quality and quantity. We do vegetation management. Fire suppression was detrimental to the forest health. Yes, we could improve the conditions."
"Would wild and scenic designation hinder your treatment?" Runyan asked.
"For the most part, no," Mendonca replied. "But we have to look at the outstanding remarkable values before we treat."
Runyan pointed out that the forest plan would stop after Step 2, eligibility. "Could Congress force you to do the suitability step?"
"People can go to Congress and ask Congress to make us do the extra step," Mendonca said. "Yes, Congress could force us to act."
Billy Billings, representing Grant County asked about the 2012 Planning Rule and how it came into being.
Mendonca said the Gila goes by the 1982 Forest Rule. "Since then, there have been a couple of iterations. One was proposed in 2006, but it was litigated and didn't pass the test, so we went back to 1982. In 2012, they actually passed an updated rule, which helps us go through forest planning. The committee that updated the rule is made up of users and environmental groups, so it's a mix of people. It's still the planning rule. It's from an act by Congress."
"Has that rule been challenged?" Billings asked.
"Yes, it has been challenged, not only the act, but the way we implement it," Mendonca said. "If it passes litigation, we keep doing what we've been doing. If the ruling changes it, we change what we're doing to fit it."
NM CAP Entity Executive Director Anthony Gutierrez said: "We've talked a lot about the upper reaches of the Gila and the concerns below Bill Evans Lake. Protections under the wild and scenic designation affect the baseline if the area has been recommended for wilderness. How will our proposal affect downstream users?"
Schultz said nothing has been determined as eligible below the Bill Evans dam. "Under our authorities, we could evaluate for eligibility. If there is conflict, your proposal could affect whether it should be wild and scenic."
Gutierrez said he grew up on the Gila River and still lives on the Gila. "I know the Gila River Valley very well. As you go downstream, the ecology changes from mountainous to valley and mountains and to desert. Our major concern is about the river being able to function."
Vance Lee, representing Hidalgo County and chairing the meeting as vice chairman, asked Mendonca if the Bureau of Land Management has a similar process for determining the status of land and rivers.
"Yes, they have a similar process," Mendonca said.
Schultz said BLM also has to do eligibility for wild and scenic designation.
Howard Hutchinson, representing the San Francisco Soil and Water Conservation District and attending by telephone, asked: "During the evaluation process, is there consideration for multiple uses on a stretch, such as livestock, road access and such?"
"We try to classify stretches, matching the current level of classification," Schultz said. "For instance, for recreational, it can have a lot of development in the river corridor. The Wild and Scenic Act allows for such nuances. Grazing management would likely be the same."
NM CAP Entity counsel, attorney Pete Domenici Jr., asked about timelines.
Schultz said the eligibility gets rolled into the draft EIS, "which will be completed later this year."
Gutierrez said he had received comments from Campbell and Hutchinson for him to forward to the congressional delegation. "Please send them to me so I can send them to the delegation and the Forest Service. I want to have them organized for the comment period."
Lee noted the New Mexico Wild had promised to get back to him with some answers.
Gutierrez said he thought it was more important to notify the congressional delegation, which might be carrying the legislation and also the Gila National Forest, because it is mandated to determine eligibility.
Mendonca had a request for comments when they are sent to him. "When you send letters to us, please send very specific comments, not broad ones. We are looking at late summer to early fall for our draft EIS, but that is subject to change."
Domenici asked for clarification. "There will be a comment period after the draft and after the final EIS."
"Correct," Mendonca said. "When the final comes out, it gives the public an objection period. We try to get everything resolved between the draft and the final, so we don't have objections."
Schultz said after the draft EIS there will be a 90-day comment period, likely into 2020. After the final EIS, there is a 60-day objection period.
"To clarify, we are required to determine eligible wild and scenic or wilderness stretches," Mendonca said. "So, you'll see ones that we feel are eligible, but we are not planning to do the suitability piece, so we will not make recommendations."
"In analyzing eligibility, do you look at our project or do we have to get to a certain point with it?" Domenici asked.
Mendonca said: "At this time, we are looking at the values. We are not going to do suitability where we would look at your projects."
"One of our concerns is that determination of eligibility might impact our project," Domenici said. "We have a federal statute we are working under. When you said Rule, to me that is not statute, but is rather a regulation."
Mendonca said in the case of the 2012 Rule, it is statute as part of the Code of Federal Regulations.
Schultz said the statutory part is the National Forest Management Act and that triggers the rule making for forest planning. "The rule is a regulation in the CFR."
"Is there any room to consider our project in the eligibility analysis?" Domenici asked. "We don't want to have a significantly studied and designed project halted by an eligibility determination. We've been working on it longer than you have."
Schultz suggested when the draft EIS comes out that Domenici and the board look at the eligibility study. "If you feel that some stretches don't meet the criteria we're looking for, let us know."
Mendonca said: "What you can do for us is provide specifics on the analysis we've done and how it may impact what you're planning. Give us specifics on our analysis. We need to know where you're headed, or we may run into conflicts."
Domenici asked how many miles of river were eligible in 2002.
"We had eight streams eligible," Schultz said "Most were in the wilderness areas. Some were eight to 10 miles long and some shorter."
Domenici asked if it would help the Forest Service to have the EIS that is being worked on for the CAP Entity proposal or even the record of decision.
"Yes, we could use that," Mendonca said. "The record of decision would be best. It makes it easier for me to incorporate it into our plan."
"Can you wait for us?" Domenici asked.
Mendonca said: "No, our timelines are running out. We have four years of funding and there is no way for us to slow down or stop the process. I think we'll figure out what you're planning."
Domenici asked if the BLM were doing a resource management plan at this time.
Schultz said he didn't think the Las Cruces office was doing anything, unless it was in the Mimbres.
Lee thanked Mendonca and Schultz for taking part in the meeting.
"And on a side note, Adam was the best pole vaulter to come out of southwest New Mexico," Lee said.
No old business was on the agenda.
Under new business, Gutierrez presented a task order. "We have expended all our funding. We need the continuation of the scope of work for NEPA. I am anticipating a draft EIS by the end of March. We need this work order approved, so we can fill in the data gaps. Once we have the draft EIS on the proposed action, it will be clarified. This would also help during the comment period."
The members approved the 1901P scope of work.
Hutchinson asked for clarification that the scope of work would extend into the comment period.
"Yes, that's correct," Gutierrez said. "The scope of work 1902P is to approve the business and operations plan. Because of the amount of work for the joint leads and to fill the data gaps, we ran out of money. Both of these notices to proceed will not go forward until Deming [the entity's second fiscal agent] reviews and sends it to the Department of Finance and Administration for approval before the funding is awarded. Since the economic analysis is already in the draft EIS, we felt we needed a strategy for the business plan, including the organizational structure and sequencing for construction of the unit, as well as a financial plan. We want to plan for everything that will happen before and after the EIS and record of decision. We anticipate this operations plan will be a living document. After the draft EIS and the potential alternatives, we may want to revise the business operating plan."
Campbell said he thought the entity needs to go to a private business corporation model to "help us set up. We are a business. Two groups scare me – academics and government. I believe a private business works better. If they don't work, they fail. Private business is also more cost effective than a university or government."
Gutierrez said: "We have anticipated such comments. But we just attempted to set up a governmental subdivision. My recommendation for this work order is to stay with Stantec. They have people who have set up water authorities. I think the joint leads are anticipating a business plan and there may be things in the EIS we don't like. We have been moving forward, but we're still on a critical timeline. We should have the draft soon, so we can review it."
Bays asked if the business plan would "aid us in the final EIS? There are few things that government does well, but I don't see how we can move into a private organization. We're using public funding."
Campbell said the organization will have a product, administration and employees. "It could be a large private non-profit. Prices for an economic review would cost about $20 million. This was pitched to me by a private development company. What we're doing is good for the EIS. And we're in the process of an economic plan."
Lee noted it could be a strategy for the business operating plan. "We need it done quickly to meet timelines."
Hutchinson asked what the delivery timeline was for the business plan.
"We expect to have it by April 9," Gutierrez said. "We will be within the comment period on the draft EIS."
Dave Maxwell of Stantec said a team was working on the business plan. "It includes myself, Estevan Lopez, Scott Verhines and support staff helping us. We are not engaging with academics. We will be using some information from the report by Frank Ward concerning crop mixes and revenue potentials."
The scope of work 1902P was approved.
In the executive director report and member roundtable, Gutierrez started out by saying most of his report was on activities at the New Mexico Legislature.
"I thank Howard for all the work he's doing," Gutierrez said. "And also, for Mr. Campbell, Mr. Allred, and Mr. (David) McSherry for going up to Santa Fe and giving us support. It was critical for us to visit with people. A lot of legislators are now realizing this is the last new water that we are going to ever see in New Mexico in this time of more litigation over water. 'It's about the water,' we got across to many. The legislators now realize that a lot of the information they are being given has holes in it. They aren't outright lies—just truths stretched to their limits. Such as the lie that Hurley will have no water, if we do this. Their project is close to giving them water now. We were able to give them real numbers and factual ideas, as well as concepts. I spent a lot of time in Santa Fe."
He said everyone on the board should have received a draft, draft EIS. "The IPRA request was made by Mr. Gaume. Howard followed up with the request. There are a lot of holes in the draft draft that is several hundred pages long. We discussed and approved an RFP, but we haven't set a schedule for when we will get it out."
Bays complimented everyone "who went up to oppose the legislation that would have taken our money away."
Lee echoed the thanks to everyone for all they're done.
Campbell noted they wouldn't have been as effective without Hutchinson. "It was an interesting experience and I was happy to do it. It would be nice to get others there. Get Howard to point you in the right direction."
The next meeting is set for 10 a.m. Tuesday, April 2, 2019, at the Grant County Administration Center.