[Editor's Note: This is part 2 and the final article of an extended legislative committee meeting on Oct. 17, 2019.]
By Mary Alice Murphy
After presentations at the Oct. 17, 2019 Interim Legislative Water and Natural Resources Committee by several people involved directly and indirectly in the Arizona Water Settlements Act process, including the Interstate Stream Commission and members of the New Mexico Central Arizona Project Entity, legislators began peppering the speakers with questions at the Western New Mexico University Miller Library.
The first part can be read at: http://www.grantcountybeat.com/news/news-articles/54135-interim-legislative-water-and-natural-resources-committee-meets-in-silver-city-101719-part-1
Committee Chairman Sen. Joseph Cervantes instructed the legislators:
I ask you to interrupt any answers if you are not getting the answers you expect. We created the ISC and we have to take responsibility for them. I'm still trying to figure how where we're going with this process. I see a case study on how not to do a water plan. Still nothing has been done. What happens if you don't get an extension on the deadline for a record of decision? I request questions and answers to be six minutes or less, so we can stay on time.
Rep. Matthew McQueen:
My first question is how the New Mexico CAP Entity is funding its operations.
Rolf Schmidt-Petersen, ISC director:
We are using New Mexico Unit Fund dollars.
McQueen:
The appropriation for operations was vetoed by the governor.
Schmidt-Petersen:
The budget adjustment language was vetoed, but there was an appropriation signed for New Mexico CAP Entity operations.
McQueen to Anthony Gutierrez. NM CAP Entity executive director:
I've heard that in the EIS there are five different alternatives. From what (CAP Entity Attorney Pete) Domenici said, you're planning on doing just the Virden alternative.
Gutierrez:
Yes, it's Alternative D.
McQueen:
So, you will select D and abandon the others?
Gutierrez:
We will not eliminate them, but we would support D, instead of B.
McQueen:
The EIS includes the economic analysis of the project.
Gutierrez:
Economic, cultural and environmental.
McQueen:
Is it viable? Can people pay for it?
Joe Runyan, representing the Gila Farm Ditch:
I said it was higher than what we're paying now, which I think is the floor. We knew the deadline was coming. But we are willing to pay for supplemental water.
Howard Hutchinson, representing the San Francisco Soil and Water Conservation District:
The reason in the delay was the six-year moratorium with not doing anything but looking at environmental issues, by governor's decree. Then after that we could go forward with developing projects.
McQueen:
Failing the appropriations, I hear it as a huge red flag. We have to use the money and we can't let Arizona have it. I think it's childish to deny someone else the water. The project has to be economically viable. The economics of this project are so bad, you need to let go of it and stop wasting money.
Sen. Peter Wirth:
I was here two years ago, four years ago, six years ago and eight years ago. Now I'm here today. Gutierrez said the non-diversion projects are important.
Domenici:
We've always been thinking about non-diversion projects.
Wirth:
I had a bill and you vigorously opposed it. It provided $82 million for a list of projects. This is a piece of legislation that makes sense. It was completely opposed. Maybe now we can pass it in 2020. If you get the extension, what does that mean to the rest of the pocket of money?
Domenici:
It is not limited to exchange of water. If 40 years from now, Deming wants to use water using the AWSA funding, it would have to recreate the knowledge. If the extension is granted, the search will continue. We can still take the water; we may lose the construction funding.
Wirth:
You will still look to use the water. I've been trying to change the makeup of the ISC. Now it's going in a different direction. Michelle Lujan Grisham vetoed part of the funding for the ISC. I hope the ISC would realize what will happen to this project if it wants to shift directions.
Rep. Paul Bandy to Attorney D.L. Sanders:
What happened to the already allocated 4,000 acre-feet of water?
Sanders:
We changed the funding mechanism. To fund construction of the unit, we gave up 4,000 acre-feet from the original 18,000 acre-feet.
Bandy:
I thought I understood, but now I'm confused. Now it's just one project? If it's only one project, the 1,200 acre-feet is all that you can get? The government can print money, but it can't print water.
Hutchinson:
Yes, water can continue to be accessed. We are proposing a similar project on the San Francisco, for which we are looking at construction funding.
Bandy:
I want to make sure the 14,000 acre-feet are accessible in the future.
Scott Verhines, Stantec engineer on the project:
The 14,000 acre-feet are senior water rights in Arizona that through a compact were allocated to New Mexico.
Hutchinson:
Yes, because of the Globe Equity Decree and the Arizona v California lawsuit, which took water away from New Mexico.
Verhines:
So, New Mexico has to pay for exchange costs.
Hutchinson:
It was a major hurt. More than 800,000 acre-feet of water has flowed to Arizona as a consequence. We don't get compensated and they use it.
Domenici:
The only way Arizona is going to pay for it is if they believe we are going to use it. Arizona believes it will get it and not have to pay for it. That's our rationale for getting even a little bit in Virden.
Sanders:
The construction funding is intended to be the way to set up money for building a unit. It is Groundhog Day because we have to go through so many machinations in order to provide water for the future. Elephant Butte was going to be defunded in the 1930s.
Domenici:
The diversions can be surface and groundwater, both.
Rep. Rebecca Dow:
I want to make sure everyone knows the correct definition of a diversion, a man-made component that shifts the direction of surface water flow.
Hutchinson:
It also includes groundwater pumping.
Dow:
How many diversions are there now in this waterway?
Hutchinson:
There is a dam on the Middle Fork of the Gila forming Snow Lake and a dam on the East Fork that forms Lake Roberts. There are three diversions in the Gila Valley, and then there's the dam creating Bill Evans Reservoir and two diversions in Virden.
Dow:
There are diversions that are structures. Lots of people use the water. If you abandon this process, you will lose the money for building the unit. For Elephant Butte, it brings in about $20 million and it's used for irrigation, as well as fishing. Sediment is impacting fishing. Are you considering the sediment build up? Will it impact the fish?
Hutchinson:
The native fish species have evolved with that flow regimen. If we have flow, the species will be fine.
Dow:
I was just wondering if you were trying today to build a dam on the Rio Grande, would you be getting the same opposition.
Hutchinson:
We won in the negotiations for this water. The AWSA prescribed the New Mexico CAP Entity, which is the successor to the Southwest New Mexico Water Planning Group, as it was called in the act.
Sanders:
The CAP Entity was created in 1968 with federal law. Arizona Water Settlements Act is federal law from 2004.
Dow:
I keep hearing the costs of water are going up; costs of construction are going up; and access to water is going down. Because of supply and demand, it makes sense to figure it out now and do it. Diversions you mention, Howard, also have recreational aspects, so more recreation is possible.
Hutchinson:
Yes, and we have sites for recreation in our planning.
Dow:
Diversions create economic benefit. It's not this/or, it's that/and. If we were looking to alternatives to a new above-ground diversion, would watershed restoration be considered? It is political, but we all want to improve our watersheds and natural resources. Could additional funding be available?
Hutchinson:
Yes, we could leverage the New Mexico Unit construction funding to great effect to get more federal funding for recreation and economic development.
Dow:
These funds should be used on construction of the diversion to leverage other federal funding.
Rep. Christine Chandler:
I address these questions to Commissioner Browne and Director Gutierrez. What is the total amount of funding available?
Gutierrez:
Currently the New Mexico Unit Fund has about $62 million to $63 million and will increase to about $90 million, minus the expenditures to date will be about $80 million. The construction fund is $53.2 million.
Chandler:
Since 2004, your process has been focused on potentially large construction.
Hutchinson:
The most money expended was between 2012 and 2016, when money was spent on non-diversion studies.
Browne:
Now in the Cliff-Gila Valley, a concrete diversion across the Gila is proposed, as well as lined ditches. These are nothing like the original large project.
Chandler:
What I take away is it's a large amount of money to develop 14,000 acre-feet. The entity appears to have focused on projects as construction, intended to create new opportunities to use the water. Now you have redirected toward small projects and working with other entities.
Gutierrez:
170 projects were submitted to use water and funding. Sixteen were funded by the ISC, after considerable vetting, as non-diversion projects. The reason the project has been a moving target is because the New Mexico Unit Fund has been a moving target. It's consistently being attacked to put toward other things. If the language separating the construction funding from the unit funding had been extracted, we could have created a project and be on our way with a set amount of funding.
Browne:
I support new projects that would enhance existing diversions, but not necessarily use the AWSA exchange water.
Chandler:
What would you propose for the 14,000 acre-feet?
Browne:
Speaking for myself at this point, I would propose to let the market decide if this is a viable project.
Senator Gerald Ortiz y Pino:
I direct this question to Mr. Browne. There are existing diversions and three projects being considered to make them more permanent.
Browne:
The ditch users pay fees for the ditch and the push-up equipment. They do not pay anything to Arizona.
Hutchinson:
That's because the users are using adjudicated water rights. The purpose of the AWSA is to build a diversion and store the water.
Browne:
It would be determined by time when the water can be taken.
Ortiz y Pino:
If they divert AWSA water, they have to pay for it. Who pays the financial obligation for water diverted?
Domenici:
We pay for only what we consume. We pre-pay for water credits and pay for what is consumed through the credits. In Virden, if they don't use the water stored, they will put the water back into the river.
Ortiz y Pino:
Is it a district that pays or an individual? And what about evaporation?
Domenici:
We would assess to pay for the security of the water. We will pay for evaporation, too, which is relatively small. It will cost $8,000 to $10,000 per pond for evaporation.
Sanders:
It's the same with the San Juan/Chama project. They pre-pay for the water, so as to have the ability to access the water. It's a very common way to pay for water.
Rep. Nathan Small:
The first question is to Mr. Domenici. I understand you are proposing only the project in Virden now.
Domenici:
Correct. It is a small project, with no unit fund money being spent elsewhere. If we get the extension, we will not ask for any other authorization. Others outside Virden may not support it.
Small:
Are higher value crops being considered in Virden?
Domenici:
No.
Small:
Is there a sense that the Virden farmers are all New Mexicans?
Domenici:
Some irrigate on both sides of the border. If we feel we should and there is broad support, we will pay Arizona to use the water. Most of it will be used in New Mexico.
Small:
Was it the sense to work with the existing diversions to expand them?
Gutierrez:
The proposed action is to build a single structure to serve the three diversions.
Small:
Is there any existing infrastructure you could use?
Gutierrez:
Yes, the Upper Gila diversion.
Small:
If you use it, you have to pay Arizona at rates set by the Arizona Central Arizona Project? The rates go up and down.
Gutierrez:
Correct.
Small:
We're paying for the privilege to use the water even though we can't set the rates. In this small area, are all your water rights used?
Hutchinson:
The purpose is to be able to use all our water rights.
Allyson Siwik, Gila Conservation Coalition executive director, who presented in the first article:
The irrigators are using 50 percent of their adjudicated rights.
Small:
I commend the program on intending to use only the construction funding. Are the New Mexico Unit Fund moneys available for the whole state?
Gutierrez:
No, they can only be used in the four southwest counties.
Small:
I heard there is $64 million in projects to fill needs. No other community has access to the funding. Every other community in New Mexico has to compete with this fund, which has millions of dollars sitting unused. That is a sad and very frustrating situation. It is worth noting that the 14,000 acre-feet still sits on the table. That doesn't change. It's a point that all of us has to consider, for use in New Mexico.
Rep. Melanie Stansbury:
I used to work in the Senate Energy Committee. It would be helpful to take us out of the weeds. Congress authorized hundreds of water projects. Many were political. Then in the 1970s, the NEPA process was put in to allow the public to determine the viability of projects. Then in the 1980s, came cost benefit analysis. Now we're doing technical feasibility; is it environmentally OK or not. Can you help us understand the hydrology analysis? Are the Bureau of Reclamation and the state taking into consideration climate change?
Schmidt-Petersen:
Yes, within the environmental impact statement. Reclamation hired a hydrological firm to look into it.
Ali Effati, ISC Gila Project manager:
The only tool to analyze the hydrology is through historical data, from 1936-2017. Another hydrologic analysis for yield covers most of the same period.
Stansbury:
Is it based on historical or future climate models?
Effati:
The analysis has looked at climate changes in models of the past. The state has also entered into contracts with professors doing predictions through 2050. Reclamation will analyze it in a qualitative manner.
Stansbury:
We are finding a huge variability in hydrology. The historic record is no longer accurate. Make sure the analysis is quantitatively done, not qualitatively. We are seeing models where in some years the Gila has zero flow. Should we use federal and state funds for water that won't be there?
Sen. Gabriel Ramos:
Thank you for all the information you've given today. Remember it is politics that takes up apart. I want to ask Mr. Gutierrez how many total diversions are on the Gila River in New Mexico.
Gutierrez:
There are 11 diversions on the Gila and on the tributaries that are multiple dams for tanks for livestock and wildlife, for instance.
Ramos:
When this project first started, all of us had the same mentality. Do the best for the region. Now that the CAP Entity has a business plan, I hope it can do the best for the area. I truly feel the members are working together. Are there other areas that could benefit from this water and use the construction fund?
Gutierrez:
We see the most impact as far as the Mimbres aquifer. Deming still supports the project. Once we secure the water, Deming will also benefit from the use of the water.
Ramos:
The amendment to the JPA is good, but it's still in process. Plus, the Catron County water project and use of the Mining District's treatment plant effluent. Tie these all together and it could bring in more jobs. What happens if there is no storage?
Gutierrez:
Storage is one of the main reasons we're doing this work. We've seen runoff turn flashy due to the fires. The whole basis for storage is to have water available when it is needed. We will try to incorporate more storage and put in wells for drip and sprinkler usage. We are trying to modernize the system created more than 100 years ago. We did recognize and approve the amendment but are waiting on state approval.
Ramos:
How much have you spent since 2015 when the entity was created [as a successor to the group cited in the AWSA]?
Gutierrez:
We have a budget of about $700,000 a year, but not all is spent. We have spent about $4 million on engineering.
Ramos:
I want to emphasize, we were thinking big, but we're trying to downsize the project to fit the amount of construction funding available. The original $1 billion project was never the intent of the CAP Entity. Now that you have a business plan, run with it. A lot of the delays were caused by not being able to use the engineering that had been done. Asking for an extension is not far-fetched.
Sen. Jeff Steinborn:
Will there be more funding available?
Domenici:
It is highly unlikely there will be more.
Steinborn:
What about the non-diversion money? You don't lose access to the water, but you do lose access to the construction fund. Is there a deadline to use New Mexico Fund money?
Schmidt-Petersen:
No. The way the original $66 million is coming into the New Mexico Unit Fund at about $9 million a year for 10 years, it can be used for design, permitting and building for the unit or for non-unit water projects. Non-unit projects are moving forward and can still use the money. Many of them are having the same issues, but they will not lose the funding.
Steinborn:
My big concern is about the CAP Entity not being all-encompassing politically. It is weighted toward the representation on the body. I realize it's sort of a self-selecting thing. I guess my question is as it relates to the non-diversion money, it's good that you are looking at other projects that benefit more people and get a bigger bang for the buck. How comprehensive is the process in getting more input into the decision-making?
Hutchinson:
We set up a comprehensive protocol for the non-diversion projects that the ISC funded. We set it up so these projects would meet the criteria. These are all water infrastructure projects, diversion and non-diversion, both consumptive use of AWSA water and the non-consumptive use projects.
Steinborn:
I would like to get the opinion of the commissioner. Is the list of projects appropriate?
Browne:
I did not have a problem with the selection ISC process at that time. But if you're asking could there be a better process, yes, there could be.
Steinborn:
I would like to see a bottom-up process, with representation from all political entities with their support, using their money.
Rep. Gail Armstrong:
Are you, Commissioner Browne, here representing yourself or the commission?
Browne:
Myself mainly.
Armstrong:
You say you all want what's best for the constituents. I just hope Catron County doesn't get the short end of the stick. More than 200 roadblocks have been put in the way of the New Mexico CAP Entity. Let's get something done and not fill Arizona swimming pools.
Sen. Ron Griggs:
A couple of things I haven't heard discussed much. You have the 14,000 acre-feet of water to use. I thought, if you didn't utilize it in a timely manner, you would lose it. But I heard that you won't lose it. You will lose access to the funding so you would have to use New Mexico and taxpayer funding. The initial argument I remember was to use the water or lose it. I've always thought there should be a way to provide the flow in the river and still get to utilize the water for different uses, such as sportsmen and such. You've had about 200 studies and you're bound to get differing opinions, probably about 200 of them. Am I right you will lose access to the construction money, if you don't put it to use?
Gutierrez:
Potentially, if we don't get an extension, we will lose up to $62 million. This is my opinion. Water is important in the West. If we lose the money and our communities don't develop the water and use it, big money will most likely develop it. I think that's the fear of our board, our regional board. At one time, we had a project submitted that didn't want any money, it just wanted the water and they would develop it. That's the fear. We want to utilize the construction money to build this project.
Griggs:
How many applications from this part of the world does the Water Trust Board receive for infrastructure needs?
Gutierrez:
I used to be planning director for Grant County and I was fully aware of plenty of water needs. As we said, 170 projects were submitted, but some didn't meet the criteria. Priscilla Lucero might know, but she's out of the room.
Griggs:
How would non-diversion money be allocated?
Gutierrez:
I have talked to Priscilla Lucero, executive director of the Southwest New Mexico Council of Governments about the process, which might involve the council of governments and the CAP Entity. The number one project vetted by the entity was a conservation project.
Schmidt-Petersen:
In the amendment to allow this allocation, there is a requirement for the CAP Entity and the ISC to develop the process rules.
Hutchinson:
The JPA prescribes the ISC in consultation with the CAP Entity.
McQueen:
But you said the funding appropriated was vetoed.
Schmidt-Petersen:
I misspoke. It was the ICIP request that was vetoed. The ICIP request was for the New Mexico Unit Fund, not the CAP Entity.
McQueen:
I disagree, but we'll discuss it later.
Darr Shannon, NM CAP Entity chairwoman:
Thank you for letting me speak. We are leaders; we are independent thinker; we know what we're doing; and we know how to use a shovel. U.S. Senator Heinrich thinks the river is going to be full of water for recreation and for the wild and scenic designation. Why do others in the environmental community think it's going to go dry? We don't think it's going to go dry. We're going to keep going. We're never going to stop.
The committee members recessed for lunch.