By KAY MATTHEWS
The Taos County Public Welfare Advisory Board is charged with reviewing all proposed water appropriations and transfers within or from Taos County to determine the impact of such actions on the public welfare of the citizens of the county. The board then makes a recommendation to the County Commission as to whether the application should be protested. We (I am the chair of the Board) recently reviewed a rather peculiar water transfer application involving Sipapu Ski and Summer Resort, located east of Peñasco on State Highway 518.
On August 22 Sipapu Recreational Development II and the Jicarilla Apache Nation filed an application with the Office of the State Engineer (OSE) to transfer 100 acre feet per year (afy) of surface water consumptive rights (350 afy diversion rights) for the purpose of snowmaking during the months of November and December of 2012 at Sipapu. The source of the water is San Juan/Chama Project water owned by the Jicarilla Nation, which was awarded the water as part of the Jicarilla Apache Tribal Water Rights Settlement of 1992 (6,500 afy total). Sipapu plans to pump the water out of the Rio Pueblo to “extend areal coverage and duration of its current snowmaking actvities . . . to cover more of the 977 acres that comprises the Sipapu lease from the United States Forest Service.” The ski resort failed to file the application with the Taos County Clerk as required by Taos County Ordinance 2010-4, which established the Public Welfare Advisory Board.
How, you may ask, can San Juan/Chama water, which comes from tributaries of the Colorado River through the Azotea Tunnel into Heron Reservoir and then into the Rio Chama, be transferred to the Rio Pueblo in a different watershed? It’s a simple enough question and the applicants seem to think the answer is just as simple: the 100 afy consumption at Sipapu will be offset by the release of San Juan/Chama water from the reservoir because both the Rio Chama and the Rio Pueblo are tributaries to the Rio Grande, ergo instead of 100 afy flowing into the Rio Grande from the Rio Pueblo it will flow from Heron Dam and the Chama River into the Rio Grande. Whether this is kosher—a depletion in one watershed with offsets in another—will depend upon the assessment of the OSE based on state water law.
Parties with “standing” may file a protest to the application, which must be factored into the OSE decision. The time frame for filing a protest of the Sipapu application remains open for 10 business days from today, November 1 (the date of the third publication of the proposed transfer in the legal section of the Taos News). The criteria for filing a protest of a proposed transfer are: 1) it will impair other water users; 2) is contrary to the conservation of water in the state; and 3) is detrimental to the public welfare.
The application also states that “Additional trails may be developed” if 100 afy is more that the ski area can use to increase its snowmaking coverage and season on existing trails. This statement warrants a look back at the history of Sipapu’s expansion efforts and previous water transfers in the 1990s.
Environmental Impact Statements, Water Transfers, and Lawsuits
In 1995 the Rio Pueblo/Rio Embudo Watershed Protection Coalition, which at the time was comprised of Picuris Pueblo; Mora, Peñasco, and Dixon/Embudo acequia parciantes and commissioners; Amigos Bravos; the Northern Group of the Sierra Club; and several other groups, appealed the Sipapu expansion Environmental Impact Statement (EIS). The expansion proposed an increase from 185 acres to 977 acres; a doubled skier capacity; two more ski lifts; a second restaurant/ski patrol building at the top of the mountain; more parking lots; and new motel units. The EIS was withdrawn when a United States Forest Service review acknowledged that the agency had failed to adequately consult Picuris Pueblo with regard to its cultural and historic properties in the area. Members of the watershed coalition who were downstream parciantes also protested the ski area’s proposed transfer of water use from agricultural to snowmaking, and soon found out that the OSE, the agency responsible for change of use applications, was investigating whether the ski area actually owned any water rights. The OSE also informed the Bolander family, Sipapu owners, that the commercial use of a spring on the ski area property was illegal (it was regarded as surface water and therefore needed a permit to use it for commercial purposes) and delivered a “cease and desist” order.
Sipapu declined to participate in any kind of pre-hearing negotiations on the water transfer request. The OSE decided to pursue the validity of the ski area’s water rights, and with the help of the pro bono lawyer representing the parciantes, declared that the Bolander family had forfeited their water rights in the early 1960s (because they had allowed the state highway department to obliterate their acequia during highway realignment and had therefore not used water for four consecutive years to irrigate, as state law requires). The ski area therefore had no water to transfer, or use for commercial purposes, and if it wanted to make snow would have to buy or lease water rights.
The family then sought to transfer water from eleven downstream acres on the Rio Pueblo owned by Lloyd and Olive Bolander. Thirteen parciantes filed a protest of this transfer application on the grounds that it would impair other acequia users and was contrary to the public welfare. Picuris Pueblo again raised the issue of the ski area name, and as part of a compromise proposal made by the coalition members, asked the ski area to change it. The coalition also asked that they extend the present ski lift vertically (dropping a second, longer lift to the west), drop plans for a second restaurant at the top of the lift, meter all their water use, including snowmaking and water for their motel units and amenities (summer use was a big concern), comply will all state water law, and give precedence to agricultural water use in times of drought conditions.
This second water transfer protest was denied, allowing the Bolanders to transfer downstream water rights to the ski area for making snow. The USFS re-released the EIS, which was again appealed. Meanwhile, the ski area applied for its fourth emergency permit to make snow for the winter of 1998-1999, which was approved by the OSE.
While Sipapu never did get the expansion proposed in the EIS, it did expand the ski area incrementally, aided and abetted by Forest Service ineptitude. In 2000 the Camino Real District Ranger illegally gave the ski area permission to clear slopes and remove wood and saw timber without having the necessary environmental assessments in place. The ski area was ordered to stop all expansion work; it then sued the Forest Service and was allowed to proceed with the expansion while it worked with the Forest Service on the necessary assessments (for a more detailed accounting of these events see http://www.lajicarita.org/03sep.htm#sipapu).
In 2001 the Bolander family sold majority interest in the ski and summer resort to a Texas corporation but remained involved in the day-to-day operations.
Status of Current Water Transfer Application
It’s very unlikely that the current application, as written, will make it through the OSE approval process in time for Sipapu to accomplish a transfer for the months of November and December of 2012. The OSE has already made corrections to the application regarding the diversion amount and consumptive use, which is based on the percentage of melting snow that returns to the Rio Pueblo (which is in turn based on modeling done to estimate return flow credits in similar geographic conditions), and anticipates further amendments to the application. Why did Sipapu go through the onerous process of executing a lease agreement with the Jicarilla Nation and filing a transfer application with the OSE for only a two-month permit to make snow? And why did the Jicarilla Nation lease San Juan/Chama contract water for $77 an acre foot, which is way below market value?
My colleague J.R. Logan at the Taos News spoke with John Paul Bradley, who is listed on the application as the Sipapu contact, and got some answers. Apparently Sipapu acquired the water rights at an auction that the Jicarillas held: 100 afy was the minimum amount of water that could be bid on for a one-year period. Bradley told Logan that the ski area would never be able to use that amount of water to make snow during that short a time frame, and neither would there be enough water in the Rio Pueblo to supply it. It would seem that by bidding on this initial offering Sipapu can position itself to acquire a longer term lease in the near future.
The Taos County Public Welfare Advisory Board will continue to monitor the progress of the Sipapu application and any subsequent applications.