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Published: 21 April 2019 21 April 2019

By Mary Alice Murphy

The New Mexico Central Arizona Project Entity called a special meeting to address an adjustment in the scope of work deadlines as requested by the U.S. Bureau of Reclamation.

During public comment, Mary Burton Riseley, who has lived on the Gila River since 1998, said she started coming to the Arizona Water Settlements Act meetings as soon as they started happening after the signing of the act in 2004. "I am a witness to the struggles we have gone through. We can't claim that it is anyone else's fault but ours."

Allyson Siwik, Gila Conservation Coalition executive director, read from a prepared statement.

"As described in the recent letter from the Bureau of Reclamation to the New Mexico, it is apparent that the Secretary of the Interior will be unable to issue a Record of Decision by the Dec. 31, 2019 deadline under the AWSA," Siwik said.

She said Reclamation estimates completion of the NEPA process by the end of June 2021, a year-and-a-half past the AWSA deadline.

"It is likely you will be considering today whether or not to request an extension of the schedule, which is allowable to 2030 under the AWSA …if the need for an extension is 'no fault of the state of New Mexico,'" she continued.

"We believe that an extension of the deadline to complete the NEPA process should not be requested," Siwik said.

She listed several reasons, including what has been said in many meetings by opponents: "The AWSA planning process has gone on for 15 years and spent $15 million and there is still no viable New Mexico Unit project." She added a more recent reason: "Given the Governor's (Michelle Lujan Grisham) veto of $1.7 million in funding for cultural resources studies, engineering design and NEPA compliance, there are not appropriated funds to complete this work by June 2021 as estimated in the bi-annual project plan. Because of the many delays and changes to the proposed action, it is hard to see how the Secretary of the Interior would conclude that the delays are not the fault of New Mexico. It seems highly probably that an extension would not be granted by the Secretary."

Siwik cited what has continued to be her opinion for the "best decision at this point—to work with the governor and the ISC to direct AWSA funding to priority community water projects that will provide a secure water supply for everyone in southwest New Mexico."

Donna Stevens, Upper Gila Watershed Alliance executive director, also read from a prepared statement.

She said she read Reclamation's bi-annual project plan for fiscal years 2020 and 2021. "It says that they can't finish the diversion planning and engineering and the environmental and cultural resources analyses until fiscal year 2021. That means they can't finish the environmental impact statement until after the Dec. 31, 2019 deadline."

She also cited the governor's veto of the $1.7 million. Stevens said the Interstate Stream Commission could request a budget adjustment to restore the vetoed funding. "But given the governor's veto, it seems unlikely she would approve the funding."

Stevens also quoted from the April 11 New Mexico Political Report, a an online newsletter on the state politics, which quoted a governor's spokesperson as saying: "The administration's opposition to the [Gila Diversion proposal] does not come down to one veto or one source of funds but rather the policies that will be spearheaded by the OSE (Office of the State Engineer) and the ISC."

Stevens opined that after reading Reclamation's project plan, it looks like the EIS cannot be completed by the deadline, which could mean forfeiting the additional federal money to reimburse diversion construction costs. "Without funding, and without an EIS, I'm not sure how a Gila diversion proposal can proceed."

Frances Gonzales of Bayard also gave public input. "I am an Apache involved in my tribe. I am one of the water protectors. One of the biggest things you are facing is the deadline coming up to go forward to the Department of the Interior with the proposal. I will contact them and tell them that it would be better to do things for the area, not just the Gila Valley. We are sending out prayers to Mother Earth and holding ceremonies because we think it is time to let this project go."

Norman Gaume, retired engineer and former ISC director, said all of the payments will be paid from the Lower Rio Grande Basin Development Fund, which with indexing will total about $90 million at the last payment in 2021. He noted, however, that the so-called construction fund and the potential for about $60 million is far less likely, because of funding shortages. Guame reported that in 2016 Reclamation's Mr. Lawrence Marquez gave a report on the latter funding and advised that the entity track it, because it was unlikely with low interest rates that more than the base $34 million would be available. Gaume said the latter monies do not come out of the LRGBDF but are paid by Reclamation on a construction schedule basis.

"I recommend you have Mr. Marquez come give you an update," Gaume said. "Should you get to the point of construction, you will be sharing the shortages with everyone else in line to get the money."

He also alleged that the New Mexico CAP Entity presented materially incorrect information to the Legislature. "The costs for water will be more than twice what Mr. (Joe) Runyan said. $150 dollars an acre foot. No way. Due to losses, the amount of usable water will be much less than what is diverted and will be zero in some years. The amount of funding available for construction will be less than the $62 million presented. The EIS will not be ready in 2019."

He ran out of time.

The agenda item under Old Business was a request for an adjustment of completion date on CAP Entity engineering scopes of work 1901P from March 30, 2019 to April 30, 2019 and 1902P from April 9, 2019 to May 9, 2019. The extensions were approved.

Under New Business, the afore-mentioned letter from Reclamation on the EIS decision elicited a great deal of discussion from CAP Entity members.

NM CAP Entity Executive Director Anthony Gutierrez said he had received the letter from Reclamation saying that it was unlikely the record of decision could be issued by the AWSA deadline of Dec. 31, 2019.

"I don't agree," Gutierrez said. "The amendment Reclamation talks about was in July 2018 and in August 2018, we gave Reclamation what it asked for. We have made no changes to the proposed action, only information to fill gaps."

He said he would like to address two items in the letter. "The first is the potential for an extension. The language in the act is not specific to an extension, other than it cannot be extended beyond Dec. 31, 2030. The letter is not specific about why the EIS is behind schedule. We have not received any specific reason what portion of the EIS is not being completed. We haven't had any subsequent document since October 2018 until we got this letter. We need to know why the EIS completion is not being met. We have met all the requests they have made in a timely manner or within a day or two. We don't know why they are unable to meet the schedule. They are not only analyzing our proposal, but some alternatives, some of which are from the joint leads themselves and some from the public. I wouldn't feel comfortable recommending any action on an extension."

The second item he addressed is the whether the entity wants the joint leads to continue the process. "While they do have a final EIS slated for June 30, 2021, the record of decision is issued prior to the final EIS. We would anticipate a draft EIS and record of decision well before that."

"The only issue is whether we will move forward," Gutierrez said. "Whether we receive a record of decision before December 2019, I feel the draft EIS should be completed. We have other projects than the diversion, projects such as the potential for efficiencies and improvements, such as on-farm ponds, drip irrigation that are stand-alone components. I want to see the draft EIS completed. We have three projects in our proposal—one in the Virden Valley, one on the San Francisco and one on the Gila. I feel like Virden could be completed. They already have a diversion; they just need storage. The continuance of the EIS was already funded. House Bill 2 did approve operating budgets for the ISC and the NM CAP Entity for engineering and technical assistance."

NM CAP Entity Attorney Pete Domenici Jr. said first of all, "while we received this letter referencing the March 15 discussion, I also received a letter dated March 28 that answers some questions I requested answers to. I first requested the information in October 2017 and again in February 2019. We were trying to clarify what the so-called construction money could be used for. It clarifies that we can use it for acquisition, and in a limited manner, we can use it for permitting. We thought that was the case. We tried to identify how that $62 million would be available to us. My understanding is that the projects requesting this funding are going forward. They are just staging them. We have to focus on how to spend what we can get and spread it out over a longer period of time. The business plan is a scheduling document and puts in steps. The first two steps would be in the low $30 millions, with the first step in years one and two and the second step in years three and four. We can still propose new projects. That $62 million is still valuable even if we do not receive it all at one time. It allows extensions and flexibility. There are ways to get there. Yes, we want to continue with the EIS and the record of decision. We can also look for alternative funding. We will have the business plan to help us. We can't do anything unless we get the EIS and the ROD. I feel Reclamation should have known our answer. The extension that the Secretary of the Interior can allow was clearly contemplated in the act. It is complicated, but we may need an extension. We've tried to explore how we could get an extension. We've talked to Reclamation but didn't get much guidance. The decision comes from D.C. I haven't seen a substitute schedule. We may need a three- to four-month extension. Fish and Wildlife and the Forest Service were shut down for five weeks during the government shutdown. That commonly affects schedules. I think it's too early to write a letter for an extension. I wanted this special meeting to get your perspective. If necessary, we may want to obtain an extension."

Allen Campbell, representing the Gila Hot Springs Ditch Association, didn’t mince words. "I received a copy of the letter. It irritated me so much I got up twice during the night to reread it. I concur that Anthony's summation is absolutely correct. I wonder whether it was strictly political or ineptitude. This may be termed as a snafu. It's very important to request the specific reasons why they are so slow. Mr. Domenici is spot on. I understand the CUFA language. The plan that has been laid out is excellent. People who are opposing this are the exact same people who want in 12 years to get rid of fossil fuels at the expense of $68 trillion dollars. The opposition is not working very intelligently. Let's be the intelligent ones and let's proceed."

Joe Runyan, representing the Gila Farm Ditch Association, said what struck him was that it was just a few logjams that were blocking it. "I wondered if we could grease some and get them through. I concur to find out the logic behind the logjam."

"I asked that question," Gutierrez said. "The answer I got was that they were far enough along that components weren't the problem. I think it's communication with the cooperating agencies and some of those things before they can release the EIS. I'm guessing here, but I think those are things that have yet to be done."

Howard Hutchinson, representing the San Francisco Soil and Water Conservation District, said he had the same reaction as Campbell, with reading and re-reading the letter. "Because my dog got me up at 4:30 this morning, I'm not in a particularly good mood, which is unfortunate for the recipients of my message. We have spent money on studies and planning. The delays were a result of eight years of the Richardson administration. We've done more than 200 studies and still have delay after delay. We spent at least $4 million in examinations that didn't move us forward to getting more water out of the Gila or the San Francisco.

"I thank Mr. Gaume for his IPRA request for the internal draft EIS," Hutchinson continued. "I made my own IPRA request and got a copy of it. In reading that internal draft, I found the NEPA contractor hired by Reclamation was seriously erring on economic analysis, cultural analysis, social analysis and the scope of the area being examined. Basically, it would have been a disaster if that draft had been publicly released for comment. In my communication as a cooperating agency with the joint leads, I pointed out the deficiencies. In the most recent conference call, I said they needed to start over before they were caught with their pants down. I think it is the reason for this letter. I thank Mr. Gaume for the IPRA because it allowed me to see how flawed the document was. The contractor has no concept of New Mexico water law or of the history of this region."

Hutchinson said that in the first meeting of the joint leads and the contractor, shortly after that, he and Mr. Van "Bucky" Allred of Catron County received inquiries about assisting with landowners to do biological surveys on private property. "We got the requests right before the close of the period that these surveys could be done. I thought: 'Wouldn't the contractor know this was one of the most important tasks for the EIS?' That was alarming. I realized they wouldn't be able to do the surveys because they must be done during specific periods of time. They had to go with assumptions that endangered species would be present in the construction areas. That would trigger immediately informal discussions with Fish and Wildlife and ultimately biological assessments based on these assumptions. All of this has indicated to me that the contractor is either grossly incompetent or purposefully fouling the waters. Pun intended."

"We wondered early on if Reclamation should be the one to hire the contractor, but Reclamation insisted," Hutchinson said. "I know of several entities that could have done an excellent NEPA and EIS process. I have heard from our engineers that Reclamation and the contractor wanted more and more information and then more information. I looked at some of the requests. They involve the considerations of design and construction that are well beyond an EIS. You look at the design and the footprint and the EIS makes a determination on whether there will be impacts within that footprint. It's the same process with counties and municipalities. After the EIS, you may need drilling to discover the geological formations. We're not going to spend that money before you receive a record of decision. We're not going to buy concrete, pumps or pipes before the ROD. The contractor kept coming up with these questions.

"Bureau of Reclamation, do the environmental impact statement on the design and footprint. I am of the opinion that we should tell them to go forward and, by god, you need to get it done within the one-year period, as ordered by the Secretary of the Interior and our President. If you have to work 24/7 to get the work done, then get after it. The implication that the board has failed to perform and has failed to respond is not factual. Right now, the contractor is having to go into the draft and correct all the errors. If he doesn't, this cooperating agency will complain," Hutchinson concluded.

Campbell said his only comment was: "I believe this is sufficient to show that malfeasance is involved. I ask to have our attorney write a letter in stronger language."

"I think that's a grand suggestion," Hutchinson said. "and the suggestion might be that maybe the inspector general of the Interior Department could be assigned to the issue."

Gutierrez said the decision that takes precedence is whether to go forward. "The other—why the letter was sent may take some time."

Ty Bays, representing the Grant Soil and Water Conservation District, moved that "We continue the path of communication with Reclamation to continue with the EIS." He also commented that he got called about some data. "The Cliff-Gila Valley is one of the most studied river systems that I know of. The data is submitted to Fish and Wildlife. The contractor couldn't seem get it out of Fish and Wildlife? It's a complete joke."

Hutchinson, after the motion was seconded, said he endorsed the motion. "the next item coming up on the agenda is looking at project planning. Looking at the timelines, I think we should continue communications to find out why we're in this quandry. We need to insist that what we've paid them be adequate. We've hired our own engineer and Reclamation is going to spend more money reviewing our plan. The money they are spending is more than we spent to generate our plan. Reclamation used to plan and build these projects out of their internal funds. To have to go back in for engineering reviews is not needed. Please make sure we communicate our frustration."

Billy Billings, representing Grant County, said he wanted to thank Mr. Hutchinson, Mr. Campbell, Mr. Gutierrez and Mr. Domenici for the in-depth explanations.

The motion to move forward with the EIS was approved.

Chairwoman Darr Shannon said they had addressed the EIS. "Do you want to address the question about why an extension was requested?"

Campbell said he would like to discuss the letter that will be sent asking why the process is so behind.

Gutierrez said he thought he had received direction and taking formal action should take place at the next meeting.

The bi-annual plan from Reclamation, Gutierrez explained, comes to the entity annually to give a record for the funding expenditures.

"Reclamation is also doing reviews on the other alternatives that have been presented to them through public comment," Gutierrez said. "I would like to ask if this will be on this Friday's ISC agenda."

Dominique Work, ISC attorney attending by telephone, said she had requested it be put on the agenda, and that it should be on the final agenda, but "right now, we have no director, so things are a little more complicated than they should be."

Gutierrez said the bi-annual plan goes out to fiscal year 2021 with stuff to be done after the record of decision is made. He noted the last bi-annual plan said the process would be completed by the end of December 2019.

Hutchinson noted the plan had an error when it called NEPA the National Environmental Protection Act, instead of the Policy Act. The description of work in fiscal year 2021 has the final EIS that year. "That tells us they do not expect to finish the draft EIS within the one year as ordered by the Secretary of Interior and the President of the United States. What we have is a failure to communicate. We were told in the most recent cooperating agencies conference call that we could expect the draft EIS by the middle of May and would be given the internal draft by April 30, so we would have two weeks to review it before it would be published in the Federal Register. I have mixed feelings about voting to approve this bi-annual plan."

Domenci had concerns with the plan. "It has the two categories of description of work. It is in the heading of the National Environmental 'Protection' Plan. I have concerns about pushing it off into 2021. I don't agree to push to 2021."

Work says it's a bi-annual plan. "We felt it would be imprudent not to allocate funding past fiscal year 2020. The issue is mostly that nobody wants to find themselves stuck without funding."

Gutierrez agreed with Domenici. "We would expect the record of decision to be issued in fiscal year 2020. "We don't want it to be pushed into 2021."

"We expected to be further along by now," Work said. "I think Reclamation is being cautious."

Domenici said his request would be to move the item of work to be done in 2021 to right before the closing of the NEPA contract and have language in between that says something like "and any work not completed in fiscal year 2020."

Gutierrez asked if the board could make a conditional approval.

Work said it she did not see how there was enough time to put in changes to have it approved at the upcoming ISC meeting.

Campbell said he has done a lot of government contracting. "Eight months before a final decision I would never request an extension. I would have to honor my contract. They should honor our contract. If they go over it, they should be in a penalty phase. If I went over, it would be costing me money. I would not be able to pull more money. Those are the standards I have to follow, and they are the same standards the government has to follow. I think this is B….S…. Send it to us when you no longer can meet it and you enter the penalty phase."

Bays said he did not see how the entity could approve this plan. "I move we reject this plan, send them a letter to clarify the dates and get our questions answered. They should meet the current schedule."

Hutchinson had questions on cultural compliance. "There is some problem with the language. It has to be completed to have the EIS produced."

Domenici asked the status of the cultural compliance.

John Rasmussen of the Phoenix Office of Reclamation, who was attending by telephone, said it is his understanding is that Class 1 has been completed and the programmatic should be done before the EIS is complete.

Work said it seems dangerously optimistic to believe that everything can be completed by fiscal year.

Runyan said he could agree with the cautionary tone and approve the plan. "Nothing says we can't do it earlier."

Campbell said the short letter from Reclamation was a very poor substitute rather than requesting a meeting to come and explain it. "We ask them to come to our next meeting. This cover letter says very little."

Bays replied to Runyan and said: "If we accept this letter and accept the plan, it will not be done by fiscal year 2021. I don't see how we could in good conscience approve this. I would want something in writing to explain it in detail."

"Is it prudent to table until the May meeting. Can we expect it at the May meeting?" Runyan asked.

"I don't think we can approve this. This is a very critical document that will be sent to the Secretary. I'm inclined to push everything into 2020," Domenici said. "Doing it in 2020 allows us to finish on time what I would like to present to the Secretary of Interior. I don't think we want to push this into 2021."

Hutchinson asked when the ISC would consider the plan.

"Not until after the New Mexico CAP Entity decision," Work replied.

Hutchinson moved to table the motion made by Bays until the next meeting. He said tabling takes precedence.

The next item on the agenda is to approve travel for the executive director and general counsel to travel to Washington D.C. to meet with the Secretary of the Interior.

"I believe this fits into this discussion that it is better to have face-to-face communication," Gutierrez said.

Campbell agreed and said he thought a "little pre-emptive visit with the Interior Department would be good. I think clarification is important. I still think there is some malfeasance involved in this whole mess."

Hutchinson asked the timeline for the visit.

"We didn't know how this discussion would go," Gutierrez said. "Hopefully, we can get a date by next month to get there."

The travel was approved.

In the executive director report, Gutierrez said he hadn't been doing much outside of the letter. "I did some research on dates and times of when we provided information to Reclamation to get a more formal record to make sure what transpired over the past couple of years. I also did some more research on the act and the language itself. I am going to meet on Friday with the State Engineer. Mr. D'Antonio is going to meet with me on behalf of the governor's office. Hopefully, he can bring to light some of the questions we're asking. Although he's new to the Office of the State Engineer this round, he's certainly knows about the AWSA and has knowledge of the process that has been happening. I also have a floodplains managers' conference to attend to keep my certification. And I will be contacting the Secretary of the Interior's office."

Domenici asked what the Legislature and the governor did "with our operating budget?"

Marcos Mendiola, representing the ISC as a non-voting member, said in House Bill 2, the ISC and the CAP Entity got their operating budget funding, and the BAR (budget adjustment) authority is in place for approximately $1.7 million. "Senate Bill 280's, the capital bill, $1.71 million for studies was vetoed. We would have to submit a BAR request."

Gutierrez said he had heard several comments about spending money. "I've been involved in this process since 2005. Mr. Hutchinson was right about delays. What I would like to comment on is that this board has taken action regarding what has been requested in providing funding from the New Mexico Unit Fund for other projects. The Entity has taken action through its joint-powers agreement. So, to say we are not recognizing that entities in our area could benefit from use of the funding I think is false. In the interest of a comment by Mr. Gaume that we took lies to the Legislature, I think what I saw in much of the testimony was nothing but lies. To the point where a representative could not even explain what he was trying to move forward. This is my first time I've ever seen this. The legislator had to apologize to the committee because the information he was trying to provide was wrong. I've never seen that before. I could say I feel sorry for the representative, but he's continuing to put the axe to everything good in Grant County. That we are giving false statements is the primary falsehood that is being carried forward. If you read some of the local newspapers and group websites, you'll find exactly that."

"To go along with that," Mr. Bays said, "Mr. Gaume has lied to us about his employment with an environmental group. It's a hell of a thing for a liar to accuse us of lying."

Hutchinson asked for an update on the business plan.

"Because of a delay in funding for engineering," Gutierrez said, "we had to pull some money from the business plan. But it will be put on paper to provide a draft hopefully by the next meeting."

Campbell said he wanted to end on a high note. "We've had an excellent run-off year compared to several years ago, comparing post Whitewater-Baldy Fire to pre-fire. Of course, the biggest benefit goes to Arizona. The average flow this year for post-fire years is 200 percent water yield. There could be other environmental factors and weather involved, but it is encouraging to me that what we thought was so destructive appears to be beneficial to wilderness water yields. That is good news."

Hutchinson said he had been tracking the cubic feet per second monitoring from the gauges. "I noted with dismay that the San Francisco Gauge for some months, has been reading 51 cfs, when I knew there was a lot more flow coming out. I reported it to the interim director of the ISC and the BoR. They came out and did a monitoring of the gauge and when it was reading 51 cfs, it was around 2,000 cfs. I knew we were in the thousands. When there was a 51 cfs at San Francisco and a 5,000 cfs at Clifton didn't make much sense."

Campbell said the USGS people have been really busy trying to refine the readings. "We have a new gauge where the East Fork and the West Fork (of the Gila River) come together. It takes a while to get everything adjusted. There is always the potential that the stream profile changes after a big flood. They are working hard on it. During the government shutdown, it messed up a lot of their schedules. We do have some gauges that are not reading well."

The next meeting is set for 10 a.m., Tuesday, May 7, 2019 at the Grant County Administration Center.