2021 NEW MEXICO LEGISLATURE

House votes to move Gila funds from CAP Entity

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Legislation that would end a debate raging since 2004 over the proposed diversion of the Gila River passed on a 43-24 vote Thursday, Feb. 25, in the New Mexico House of Representatives and now moves to the state Senate.

House Bill 200 would transfer authority over funds remaining from the Arizona Water Settlements Act of 2004 from the New Mexico Central Arizona Project (CAP) Entity to the state Water Trust Board (WTB). The $80 million remaining from the original federal allocation would be used for water projects in Grant, Catron, Hidalgo and Luna counties, but not for water diversion projects.

The federal legislation that resolved a decades-old dispute between New Mexico and Arizona over water rights carried with it the allure of 14,000 acre feet a year of “new water” for New Mexico – 10,000 acre feet from the Gila River and 4,000 from the San Francisco River.

It also provided up to $100 million in federal funds to be used either on diversion projects or conservation projects. The Interstate Stream Commission (ISC) chose diversion. And, the New Mexico CAP Entity, a 15-member board made up of local elected officials and water-district leaders, was formed to direct the process.

But none of the diversion proposals proved feasible, and in 2019 the state lost $56 million that was available for the project when the U.S. Interior Department denied its request for a deadline extension to come up with a proposal. That same year, Gov. Michelle Lujan Grisham vetoed a $1.7 million request by the ISC for Gila River diversion. Then, last June, the ISC voted to give up the effort.

“We spent 15 years and $15 million trying to figure that out, and we failed,” said Rep. Matthew McQueen, D-Santa Fe, a cosponsor of the bill along with Rep. Nathan Small, D-Las Cruces, Sen. Siah Correa Hemphill, D-Silver City, and Senate President Pro Tempore Mimi Stewart, D-Albuquerque.

“We didn’t miss the deadline because we just ran out of time,” McQueen said. “We had 15 years and all the money we needed to do the planning. We missed the deadline, because try as we might, no matter which approach we used, there is no viable economic option for diverting water from the Gila River. So it’s time to move on.”

While the 2004 act gave New Mexico the ability to construct a water diversion project, it did not give the state water rights. The needs of downstream users had to be met first, meaning New Mexico could only divert water in years with high river flows. And, it would have to pay an exchange rate so that the Gila River Indian Community in Arizona could replace the water New Mexico diverted.

Rep. Candie Sweetser, D-Deming, said the bill would take control of the money away from local officials who understand the needs of the community. Her husband, John Sweetser, is a member of the CAP Entity and of the Luna County Commission.

“What your legislation does is it takes appropriating power away from people who are elected or selected to represent the four-county area and gives it to a board mostly appointed by the governor,” she said. “This is one of those bills that tells people in my hometown, my home county, my home region, you don’t have it. You can’t cut it.

“The diversion is behind us,” Sweetser said. “What we’re looking at now is $80 million to be invested in a four-county region. And if your legislation is not enacted, the decision will be made by people who were elected and selected by people in that four-county region.”

McQueen noted that not all of the communities in the four-county area chose to join the CAP Entity when it was formed, so it only represents some of the communities in the four counties. He said WTB has the best expertise in managing water projects.

And, McQueen said the CAP Entity was “still somewhat fixated on diversion.” He noted that in recent weeks it has circulated a third amended joint powers agreement stating that diversion “remains a priority of the CAP Entity.”

New Mexico House Speaker Brian Egolf, D-Santa Fe, said under the 2004 Act the ISC has always had control of the funds, not the CAP Entity.

“This legislation doesn’t change anything with regard to appropriations,” he said. “What it’s doing … is saying enough is enough.”

“This never had the offer to us of increasing the state’s water rights portfolio by a single drop of water, let alone 14,000 acre feet,” Egolf said. “A lot of people were chasing a mirage.”

Walter Rubel can be reached at waltrubel@gmail.com.