With a big deadline bearing down in 2019, the New Mexico Central Arizona Project Entity, or CAP Entity, has yet to choose a plan or exact location for the Gila Diversion.

That’s despite already spending more than $12 million of the state’s federal subsidy for the project.

At the end of September, AECOM—the engineering firm hired to come up with designs for the CAP Entity to choose from—presented board members with possible design ideas based on the group’s cost and needs. The CAP Entity was then supposed to decide at its October 3 meeting on a plan.

Instead, the group punted.

“Their newest idea to use farm ponds as reservoirs might provide a penny or two of benefits for every public dollar spent,” said Norman Gaume, a former director of the Interstate Stream Commission (ISC) and opponent of the Gila River diversion. “Meanwhile, Deming is plagued with old, leaky pipes, and the project to assure water for Bayard, Santa Clara, and surrounding communities goes unfunded.”

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Gaume pointed to a presentation given by the ISC at the October meeting that shows that by the end of Fiscal Year 2020, the state will have spent an additional $22.3 million of the federal subsidy.

“It’s pretty simple what they need to do,” he said. “The best use of that money would be to use it to provide benefits to the vast majority of the 64,000 people who live in the four counties, versus about 50 irrigators who would benefit if (the Gila diversion) were developed.”

In addition to repeatedly changing course on designs and locations, officials also haven’t explained who will buy water from the diversion, how much the water will cost or how much water the river can physically yield.

Under a 2004 law, the state was given the chance to access 14,000 acre feet of water, but studies have cast doubt on whether that much water is even available from the river.

New Mexico plans

In 2004, Congress gave the state of New Mexico the opportunity to exchange water with downstream users in Arizona and take a total of 14,000 acre feet of water from the Gila River and its tributary, the San Francisco. As part of the 2004 Arizona Water Settlements Act (AWSA), New Mexico had 10 years to decide how it would use federal money to meet water needs in four rural counties in southwestern New Mexico. The state could pursue efficiency, conservation and restoration projects or receive additional funding and build a diversion on the Gila River.

The ISC chose the diversion alternative in 2014 and then in 2015 passed the authority to design, build and operate the project to the New Mexico Central Arizona Project Entity, or CAP Entity. The entity’s board members each represent a county, city, agency or irrigation district that committed to the project.

To receive the full federal subsidy, all the environmental studies for the project must be completed and approved by the federal government before December 31, 2019.

According to the U.S. Bureau of Reclamation, a consulting firm has been hired to complete the environmental impact statement, but the National Environmental Policy Act, or NEPA, process can’t begin until the CAP Entity has told the ISC and Reclamation where the project will be and what it will include.

New Mexico was supposed to have informed Reclamation more than a year ago of its design and location plans. To meet that deadline, the CAP Entity’s executive director sent Reclamation a two-page letter in mid-July 2016 letter discussing its plans for diversion. But the plans have continued shifting—and based on AECOM’s September presentation to the CAP Entity, it appears as though the project will divert just 425 acre feet of water.

‘A life of its own’

In September, the state’s Water and Natural Resources Committee met in Silver City so legislators could hear an update from the CAP Entity and stakeholders.

Vice-chair Rep. Matthew McQueen, D-Galisteo, said the Gila diversion project “seems to have a life of its own.”

“In my opinion, it looks like it keeps going for the sake of keeping going,” McQueen said.

After having ten years to decide, in November 2014, the ISC informed the federal government of its intention to build a diversion on the river, instead of using the federal subsidy for water conservation projects in the four-county area. That opened the door to two separate funds of federal money.

“One pot is roughly $50 million and can only be used for construction, for a diversion from the Gila,” McQueen explained. “The other pot of money, which is inflation-adjusted, is roughly $90 million and can be used for all sorts of other good projects that would benefit everyone in the affected community down there.” That second pot is called the New Mexico Unit Fund.

Already, the CAP Entity has slimmed down the project, saying it will not be used to pipe water to Deming—one of the original plans considered, that had a price tag of close to $1 billion—but only for irrigation.

“They seem to be spending the money from the New Mexico Unit Fund, the more flexible money,” he said, “and essentially spending that in order to figure out how to spend the $50 million in the construction fund.”

What that means, said McQueen, is that as the CAP Entity continues spending money on staff, consultants and attorneys, and “the less money they have in the New Mexico Unit Fund that they can use to actually benefit the community.”

The CAP Entity technically answers to the Interstate Stream Commission, McQueen said. “But my impression is, the ISC is just rubber stamping whatever they want to do.”

During the 2017 legislative session, Sens. Howie Morales, D-Silver City, and Sander Rue, R-Albuquerque, introduced a bill requiring additional oversight of the federal money. Had the bill passed, the ISC would have been required to answer specific questions before paying out more money for attorneys, engineers and consultants. Officials would have needed to show the project is technically feasible, explained how much water is available from the river and who would use it, estimated the project’s price tag and determined how New Mexico will cover the difference between the federal subsidy and the project’s actual cost.

But in mid-March, the Senate Finance Committee tabled the bill and asked supporters and opponents to resolve the issues on their own.

McQueen doesn’t envision a legislative fix in the next session either. Change won’t likely come during the administration of Gov. Susana Martinez. Not only does she hold veto power over any legislation that could be passed, the ISC positions are all governor-appointed.

“With a new governor, there will be a new ISC,” McQueen said. “A new governor can hold (the CAP Entity) accountable, but right now, that doesn’t seem to be happening.”

NM Political Report called and emailed Anthony Gutierrez, executive director of the CAP Entity, and Melissa Dosher, public information officer of the New Mexico Interstate Stream Commission, who did not respond. CAP Entity Chair Darr Shannon responded Monday morning to a question about the entity’s website and meeting minutes.

Correction: The original version of this story stated that the Arizona Water Settlements Act gave New Mexico “new” rights to Gila River water. In fact, that legislation gave New Mexico the opportunity to exchange water with a user in Arizona, not the water rights themselves.

Update: Added that Darr Shannon did respond on Monday morning to a question asked by NM Political Report.