By A. J. Ward

The New Mexico Central Arizona Project Entity held its regular monthly meeting on May 7, 2019. This was the second meeting to address an adjustment in the scope of work deadlines as requested by the U.S. Bureau of Reclamation.

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

“It has been obvious for months now completion of the Record of Decision by the December 31, 2019 deadline is not possible. You will be considering today an extension of the NEPA schedule to arrive by June 2020," Siwik said. "In order to complete the necessary studies and planning work the BOR needs another $1.8 million and the entity is asking for $700,000 in the fiscal year 2020 budget including $165,000 for Mr. (Pete) Domenici (NM CAP Entity attorney) and $325,000 for engineering. The GCC strongly opposes an extension of the deadline to complete the NEPA process and we strongly oppose approval of the additional $1.8 million in funds for the NEPA process. The AWSA planning process has gone on for 15 years and wasted $15 million to date and there is still no viable NM Unit project. The project will yield little water. None in some years. The project may cost more than the AWSA funding available. Irrigators can’t afford the cost of the project water. The NM CAP Entity still has not shown financial viability. The list goes on. There is no escaping the fact that the situation in which you find yourselves in today on the project is the fault of the NM CAP Entity, The Entity has significantly modified the proposed action multiple times as laid out by the BOR. There were four amendments to the proposed action in 2018 and several other changes in 2018 and 2019. The GCC opposes an extension of the NEPA schedule and wasting a single cent more on this ill-conceived project. The best decision at this point is to disregard the 15 years and $15 million in some costs spent on this project to date and 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 SW NM."

Chris Overlock said, “I represent myself and just have been following this whole issue. And I guess I want to say thank you for all your hard work. I know in my life there has been lots of times when I see the handwriting on the wall and it usually comes after hitting my head against the wall a few times. But I appreciate all the hard work. I ask that you pull the plug. Hold your head high, and see the handwriting on the wall. Thank you very much.”

The first agenda item under Old Business was (a.) Bureau of Reclamation Revised Bi-Annual Plan and Schedule of Advances for Period of July 1, 2019 to June 30, 2021.

NM Cap Entity Executive Director Anthony Gutierrez said: “We have a bi-annual project plan submitted by the Bureau of Reclamation along with a schedule of advances. We had asked the BOR to modify that schedule based on the fact that we felt they should be able to be completed in the fiscal year 2020. It appears they have adjusted their bi-annual project plan. This is the plan they have to continue the NEPA schedule. They continue to exceed the 2019 deadline. However, regardless of the deadline, we should continue with the NEPA project. We feel, unlike the comments we just heard, we feel we do have a viable project. There are components that provide an immediate benefit. Therefore, we should continue with the NEPA schedule and the EIS schedule until completion. And although we did not necessarily get the schedule we wanted, I do feel we have to recommend approval at this time."

Joe Runyan, Gila Farms Irrigation, said he hears whispers that the impact study could be abbreviated further." If the five big wells on the Upper Gila were eliminated, it seems if anyone was going to use CAP water, they would put their own wells in anyway."

Gutierrez said most analyses are completed. The actual process of the EIS must go through. "If we remove components, we still must go through the process. Each portion would take 30 days. It could be two weeks to get comments. Then another two weeks before they release the public portion. Then a 45-day period where they receive comments. The process will take a certain length of time. Whether or not components are removed is not necessarily going to affect that. "

Runyan said the criticism that further analysis is going to have exorbitant costs is not true. The money is already spent.

Gutierrez said, “Most yes."

Allen Campbell, representing the Gila Hot Springs Ditch Association, said, “I feel Anthony is quite correct. We did vote for those in the beginning. It is not one simple little project and we have options. We need to do as many of those options as possible because of the possibility that one portion may be problematic. The real question is financial: Has there been an increase in cost due to this increase in time?”

Gutierrez said, “I haven’t seen an increase in costs because of the extension of time. What I have seen is a carryover of expenses and monies that haven’t been used. We want to see where to apply it to upcoming costs."

“Thank you very much and Allyson, you are incorrect," Campbell said. “Number two, have we seen CAP changing some plans and amendments? Has that been a very big issue? We have been providing information; provided data for EIS. People see these as changes in the proposed data. It is only providing more data. Again, Allyson is wrong."

Gutierrez said the proposed action has not been changed. Providing data for EIS is one of the most common things that happen between agencies and EIS, it is simply providing additional data. "We have been providing that consistently."

“I’m sorry to waste time," Campbell said. "It appears part of the costs incurred have been for the ability of environmental organizations to further their income.”

Vance Lee, Hidalgo County, asked, “What happens if we do not approve the EIS revised plan? Does it revert back to the previous one?”

Gutierrez said, “The plan is to go to the ISC and the CAP. How the project goes year to year and how the project goes forward. That is how the NEPA gets paid for. If we do not approve, it pretty much stops."

Ty Bays said, “It appears to me they have too much time between some of these dates. Is there any way we can propose to them to speed this up? Four months to publish the final EIS seems pretty much. We could give them three months to move forward. Can we expedite it?

Gutierrez said, “We want a good defensible EIS. There are three separate projects: one in Virden, one in the Upper Gila and one in the San Francisco. It is extremely complex. Three projects take time to get all the analysis done. We are hoping for a more comprehensive schedule. The preliminary schedule they provided us with was extremely comprehensive and showing exactly how long each individual component would take to complete. This one gives us some almost quarterly timelines. Hopefully we will get a more comprehensive schedule so we can say that this shouldn’t take us this long. "

Darr Shannon, NM CAP Entity Chair, asked about the EIS schedule. "It says public record of decision in June 2020. How does that happen? If we don’t allow the extension, how can they give us a deadline after the fact?”

Gutierrez said, “The deadline is more for the funding than it is for the actual EIS. The EIS allows for an extension. There is one question. We have one to nine months to publish the EIS and hopefully they will speed up the process. We shouldn’t have to have an extension on the process they are being held to. That is the other looming deadline that the EIS has. What we are approving is the bi-annual project plan. They have quarterly reports and keep close tabs on how the money is used. The approval we need today is for the project plan, not necessarily the EIS schedule.

Bays said, “We have gotten a lot of criticism and maybe in part rightfully so on the process of this and the delay, yet the Federal government and our State government set up how we had to go through this process. We could have hired someone else and have gotten it done in a timely fashion. So if we give them extra time, I want to request that in the event there is a hole and if a radical environmental groups sues and wins, we can show blame on the part of the BOR. I would like for them to reimburse us for the cost of this process."

Shannon asked, “Is that for the entire plan?”

Bays said, “Yes, for the entire EIS process. It is justifiable if we can’t get it done. They took this and took our money and agreed to get this done and they clearly are not going to now. It puts us in a position to get criticized and can’t get it done. The blame should go where it belongs."

Gutierrez said, “They were named jointly as an act of Congress as part of the legislation. They provided a schedule, and we had no notification they were this far off the schedule. We have to concentrate on visiting with the Secretary of the Interior’s office. We have been notified by their office, and we are trying to set up a schedule for a meeting. We just received that yesterday. Potentially there is $50 million out there that New Mexico could be losing.”

Bays said, “I understand. They did a poor job on this EIS and by all indications are not even on schedule. We'll lose that $50 million anyway. In the real world, people are held accountable and I would like that message sent to our state and federal governments.”

Shannon asked if it is mandatory that the entity approve or disapprove this revised biannual plan today at this meeting.

Gutierrez said, “It needs to be approved by the NMCAP before approval by the ISC. We are trying to get this plan approved so the ISC can do what they need to do."

Dominique Work, ISC attorney attending by telephone, said the urgency of this is that according to both the Memorandum of Understanding between the BOR and the ISC and the MOU between the cooperating agencies all has to be done before the end of the fiscal year. "As you may know the State fiscal year ends on June 30, so the ISC will not take action on the final project plan until the NM CAP Entity does. We have set approval of this plan for the main meeting of the Commission and that is why we’re hoping the Entity takes action on this today, so we will know where we stand. If the Entity decides not to act today, the only other time this can be done is June and that is cutting it a little bit close in terms of the end of the fiscal year. If there is no approved bi-annual plan by July 1, then Mr. Gutierrez is correct. The project will stop and there will be no flow of money to the BOR to continue the work on the EIS."

Runyan said there is no downside. The reality is "it is behind schedule and the best option is for CAP and the BOR to join forces and go before the Department of the Interior and ask for the extension. I think that is the straight forward way to do it. “So, I am going to vote for it.”

Campbell said, “Let’s vote on it.”

Lee moved to approve the revised bi-annual project plan as presented by the BOR, and Runyan seconded the motion.

Howard Hutchinson, San Francisco Soil and Water Conservation, attending by telephone, asked what the indication from the ISC is and if they are going to give their approval after the entity's approval.

Dominique Work, ISC, attending by telephone, said she couldn’t speak for the Commission but at this time I have no indication they would not approve this plan if the CAP has approved it.

Jim Massengill, City of Deming, said he would like every other month to follow up to review the schedule in the bi-annual project plan. At this stage, it is fair to get an update monthly.

Shannon asked if he was asking that within the motion to approve the entity should get a monthly update from the BOR?

Massengill said “Correct.”

Lee said he would include it in the motion. Runyan seconded the change.

Shannon said, “So now the motion states that we do approve the BOR revised bi-annual project plan and schedule of events for the period from July 1, 2019 to June 30, 2021 and with a monthly update included in the bi-annual plan."

Shannon called for the vote. The motion passed by voice vote.

Benjamin Segovia, Farm and Livestock Bureau, attending by telephone, asked for a point of clarity. "You had a motion and then added the amendment and voted on the amendment but didn’t vote on the motion?"

Lee said that is correct. “I now move we include the amendment into the original motion.” Campbell said he would second the motion. Shannon called for the vote, all were in favor and the motion passed.

Related to the New Mexico Unit EIS schedule, Gutierrez said, he didn't know exactly what to do. "The schedule was provided to us by the BOR as a request. I don’t think it needs approval. But we will ask for a more comprehensive schedule so we can try and figure out exactly what is needed. These are timelines and these are portions of the schedule that have to be met but it doesn’t give us a true indication of what the schedule is like. So, we can certainly request a more comprehensive schedule."

A motion was made and seconded to request more detailed and a comprehensive EIS schedule from the BOR.

Robert "B.J." Agnew, representing the Upper Gila Ditch Association, asked what happened to the August, November, and December reports.

Gutierrez said they are just timelines, with a lot of room in them. "I assume a lot will be happening and there is room to tighten up. They have to actually be finished by March. But this schedule certainly doesn’t reflect that."

Shannon called for the vote and the motion passed.

Agenda Item c. – BOR letter to Leslie Meyers
Gutierrez requested from the board at the last meeting to get a letter by NM CAP Entity Attorney Pete Domenici Jr. The second part of the letter the group received had to do with continuing to expend resources toward the completion of the NM EIS Unit. "All this letter says is that the board unanimously approved to continue the process and to move forward. Just serving notice to Ms. Meyers. No action is needed. "

Agenda Item d. Stantec Engineering – Business Plan
Dave Maxwell, Stantec Engineering, presented a Status Report on the Strategy for a Business Operating Plan. They had a tight deadline because they just received the notice to proceed on April 17. They developed a strategy with four components that would contribute to the generation of money quickly. He said the firm is not finished with the report and is waiting on final numbers from the BOR. He said the project is viable under certain conditions.

Maxwell explained each plan in detail and extensive discussion followed concerning each phase.

“The construction phasing plan would optimize the feasibility of the project during the initial years of operation," Maxwell said. "It will be necessary to construct components of the infrastructure that can most immediately contribute to the generation of revenues.”

He said the current crops are not high value at this time. Stantec divided the Strategy into four different phases. During the colder months, the river is flowing at its greatest level, so the water can be diverted and held until irrigation starts.

“The second phase is organizational capacity and structure," Maxwell explained. "A plan for how the organization will be governed will be determined together with a plan for management of the operations including the organizational structure and capacity.

“The fourth phase is the construction financing plan," he continued. "In addition to the timing and availability of construction funds and the New Mexico Unit Funds, research the availability of other potential capital funding sources. Provide a plan for optimum use of the construction funds, New Mexico Unit funds and other potential funds for construction of the proposed action component and needed to subsidize operations during the early stages of operation.”

Several concerns were voiced about the report being a strategy rather than a business plan because a business plan must be in place for CAP. Maxwell said “We are not taxed with a business plan because there is not enough budget. Campbell asked that Maxwell produce more graphs that would make the report easier to understand

Under new business, the final budget for the fiscal year 2020 was discussed. Gutierrez said the Legislative Finance Committee and the Legislature approved a flat budget. He moved some money around in various categories. He recommended approval and will bring another budget for fiscal year 2021.

Lee requested a preliminary budget by the side to see where the movement was. It would be good to see a comparison.

Bay said the EIS would be coming out so he felt assured that the $165,000 for attorney fees would not be adequate. "We are just requesting the budget, but the Secretary of the Interior is handling it. We could do a line item transfer."

The budget was approved.

Gutierrez gave the executive director’s report. He is waiting for Deming to approve his travel to Washington DC. Monday, he talked with BOR, ISC, and had a positive meeting with John D’Antonio, State engineer. He said he hopes to meet with the Governor’s office soon and also attended a manager’s ??? conference to retain his certification.

Campbell explained the spreadsheet comparison he put together two years ago to compare river flows and if the large fires changed anything. It appears they have. The Whitewater-Baldy Fire gave a substantially larger flow because of the lack of vegetation on the slopes. H has had more years and it is now seven years of data since he created the data of the 29 years prior. This last year is the biggest since 2012. The results at the Gila gauge show 200% increase for the Gila River and 160% for Mogollon Creek. He said he believes "we need to get an official study done. If there are changes in the river flows, through the CUFA (Consumptive Use Forebearance Agreement), the CAP could get an additional 4,000 acre feet. It is a big thing and would be a substantial increase." He would be glad to show the data. Other things need to be considered and it would broaden the availability of water, not decrease it.

Hutchinson said, “I would like to add onto some of the comments earlier made by Mr. Runyan and Mr. Campbell concerning Allyson’s statement. The way I look at it, the majority of delays we have had have been due to political interference that has been engendered by the environmental community, particularly Allyson’s group. I am sure she is very proud that she has been able to delay this some 10 years and have millions of dollars of costs, but for her to assign that problem to the CAP Entity, she should be looking in the mirror and pointing the figure at herself. That is my statement. Thank you.”

The next meeting will take place Tuesday, June 4, 2019 at 10 a.m.