The New Mexico Interstate Stream Commission on Thursday deferred making a decision that is key to the future of the controversial Gila diversion project. The New Mexico Entity of the Central Arizona Project — the CAP Entity — is currently awaiting the completion of an environmental impact statement required by the National Environmental Policy Act — a process that has been plagued by delays and missed deadlines.
On Thursday, it edged even closer to another deadline as the ISC failed to approve or even consider approving a $1.8 million revised biannual project plan — which the commission itself had requested the Entity submit for approval at the meeting.
Now the ISC will have to consider the matter at its June meeting, close to the July 1 start of the next fiscal year — when the U.S. Bureau of Reclamation is expecting a first payment of $367,000 to continue work on the diversion project EIS. If the BOR doesn’t get the money on time, work on the EIS will halt, causing further delays the Entity can’t afford.
The Entity was formed in 2015 in order to capture water accorded the state of New Mexico in the 2004 Arizona Water Settlements Act, which entitles the state to up to 14,000 acre-feet of water annually. The project is paid for through the New Mexico Unit fund.
In March, the Entity received a letter from the BOR, the agency tasked with completing the EIS. The letter informed the Entity that the BOR was unlikely to complete the EIS in time for the U.S. secretary of the Interior to issue a record of decision by the already extended deadline of Dec. 31, 2019. In the letter, the BOR stated that it would be up to the U.S. secretary of the Interior to grant an extension and that the letter “is not an indication of whether any extension request will be granted.”
At that time, the BOR also sent the Entity the revised biannual project plan for completing the EIS, a document that states how and when the project is funded, and sets out a time frame for completing it.
The revised, projected completion date is now June 2020, according to the BOR document, a date the Entity negotiated and then adopted at their last regular meeting earlier this month.
The BOR originally suggested a June 2021 completion date, which upset the Entity’s members who feel responsibility for the delayed EIS completion falls to the BOR, the agency in charge of the National Environmental Policy Act process.
During the May CAP Entity meeting, Dominique Work, general counsel for the ISC, pointed out that the Entity risked running up against the end of the fiscal year if they didn’t bring the plan before the ISC soon.
Accordingly, the ISC recommended the Entity submit the revised schedule for approval at the May meeting.
“We set approval of this plan for the May meeting of the ISC,” Work said via telelink at the May 7 CAP Entity meeting. “If the Entity decides not to act, the only other time this can be done is in June — and that is cutting it close. If there is no plan by July 1, this project will stop, because there will be no flow of money to the [federal Bureau of Reclamation] for the EIS.”
The Entity is officially cutting it close — though blame for Thursday’s deferred action lies at the feet of Rolf Schmidt-Petersen, who took responsibility for the mistake that resulted in the plan’s approval not even being considered. Schmidt-Petersen is the Colorado River Basin bureau chief, who oversees the Gila Basin project manager, Ali Effati — who was set to present the biannual plan for approval/disapproval at the meeting.
“It was my responsibility to have had that on there, it was an oversight,” Schmidt-Petersen said.
Marcos Mendiola, Interstate Stream Commission project manager, said the approval of the $1.8 million funding for the biannual project plan was important. “Our goal would be not to have a gap in funding,” he said.
Another kind of responsibility for Thursday’s deferred action lays with retired water resources engineer and former director of the ISC Norm Gaume, who has been a consistent pin to the Entity’s balloon. Thursday morning, Gaume, who attended the meeting in order to make public comment and submit documents for the record, pointed out that agenda item five was defective.
Every other item up for the commission’s approval had specific dollar amounts attached to it — except for the approximately $1.8 million associated with the “U.S. Bureau of Reclamation 2020-2021 revised biannual project plan submitted by Reclamation to NMISC related to National Environmental Policy Act (NEPA) compliance for a New Mexico Unit of the Central Arizona Project,” according to the agenda.
“Your agenda for this meeting gives public notice of the amount of money that you will consider for authorization for contracting and expenditure, except for agenda item [five],” Gaume wrote in the final paragraph of his comments.
“Because your agenda does not give notice of the action you are considering pursuant to the requirements of the NM Open Meetings Act,” as Gaume put it. These comments were provided to ISC legal counsel Christopher Shaw, who apparently followed Gaume’s advice, to defer action, rather than risk violating the Open Meetings Act.
“Norm is pretty sharp,” said Anthony Gutierrez, who learned of the non-decision from the Daily Press. Gutierrez was concerned that the ISC had flubbed the approval of this key item. “There is just not much I can do,” he said. “I do, however, feel that they will approve this next month so we can move forward.”
Furthermore, the $1.8 million may not be fully appropriated from the NM Unit Fund anymore at all, since Gov. Michelle Lujan Grisham line-item vetoed such an appropriation in the first week of April when she removed it from Senate Bill 280.
Schmidt-Petersen disputes that characterization and echoes Gutierrez’s past comments that the governor merely vetoed “duplicate money” that is still allocated in House Bill 2.
The governor may have to restore that vetoed funding in order for the Interstate Stream Commission to have the money to allocate to the Entity’s purposes, i.e., the completion of the EIS on the revised schedule.
Schmidt-Petersen said the ISC has not requested the funding be restored; however, he left the door open to requesting a budget adjustment to access any additionally needed NM Unit fund monies.
Since a budget adjustment request would have to pass through the State Board of Finance — on which the governor sits — it’s not certain the adjustment would be granted.
The Interstate Stream Commission will take up the approval/disapproval of the biannual project plan next month, days before the first payment to the Bureau of Reclamation is to be made.
Geoffrey Plant may be reached at geoff@scdaily press.com.