By KAY MATTHEWS
I sat down to write this article on December 9; we got three inches of snow at 8,000 feet. During these last few months of no precipitation and temperatures between 50 and 60 degrees, lawyers have been meeting in Santa Fe and Albuquerque to rewrite the Aamodt settlement (to conform to federal legislation that was passed in 2010), a deal that is dependent on San Juan/Chama project water, Top of the World water, and Cochiti evaporation. There has been marginal snowfall in the San Juan Mountains, where all that San Juan/Chama water is generated, and water managers are already saying there won’t be enough to fulfill the extant downstream contracts. Do these lawyers really believe there is going to be water to fulfill the Aamodt, Navajo, Abeyta, and other settlements that require massive projects to move it out of its area of origin to its destination, or do they really suspect, like those who have long criticized the terms of the settlements, it’s just paper water?
Ski areas, struggling for ski business with marginal conditions and postponed openings, are also joining the water queue—and the “expand or die” mentality. Sipapu Ski and Summer Resort is leasing San Juan/Chama water rights to make snow so it can be the “first to open and last to close.” Taos Ski Valley just got the go ahead from Carson National Forest to implement a large expansion (the decision is being appealed by several citizens): an increase of its expert terrain by 60 percent with two new lifts accessing high-alpine areas currently accessible only to hikers; upgrades to three other lifts; thinning of trees to expand two new glade areas for advanced intermediate to expert skiers; construction of a permanent tubing facility; a snowshoe trail system; and a lift-served mountain bike trail for summer visitors. Ski Apache has implemented a $15 million expansion with three new chairlifts (including a high speed gondola)
Taos County Ordinance 2010-4 established the Taos County Advisory Board, comprised of nine members from the county who represent county subregions, to review all water transfers or appropriation within or from Taos County and recommend to the Taos County Commission whether it should protest the proposed transfer or appropriation as inconsistent with the public welfare of county residents. The Advisory Board [disclosure: I’m the chair of the board] met on December 5 to discuss the latest developments regarding Sipapu’s proposed water transfer. The ski corporation and the Jicarilla Apache Nation filed a joint 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. 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 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 application proposes that the 100 afy consumption at Sipapu will be offset by the release of San Juan/Chama water from Heron Reservoir because both the Rio Chama and the Rio Pueblo are tributaries to the Rio Grande; 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.
The OSE received four protest letters regarding the Sipapu/Jicarilla transfer: 1) 10 downstream acequias in the Dixon/Embudo area; 2) Carson National Forest; 3) Picuris Pueblo; and 4) Amigos Bravos. The review process at the OSE takes many months, particularly when protests of the application are filed, and as the Sipapu/Jicarilla application will expire at the end of 2012, no administrative action will take place this year. Assuming Sipapu renegotiates its lease with the Jicarilla Apache Nation for 2013, a new application will have to be filed, triggering a new window of protest.
When Sipapu Ski and Summer Resort filed its transfer application with the OSE it failed to also file notice with the County Clerk, which is required by County Ordinance 2010-4. In a letter to the County Clerk and the Advisory Board apologizing for this omission, Sipapu stated that “Creating additional snow benefits our guests, our community and Taos County for the following reasons:
Through this lease, Sipapu is bringing additional water rights into Taos County. According to Taos County Ordinance 2010-4, there is increasing pressure for transfers of water from Taos County to different areas within the County, within New Mexico, and potentially to other states. This lease brings transfers of water into our County [their emphasis].
The lease does not bring water into Taos County. While Sipapu would pump water out of the Rio Pueblo, which is in Taos County, the offset water would be released from Heron Dam, in Rio Arriba County, flow down the Chama River into the Rio Grande near Española, also in Rio Arriba County, and then downstream towards Santa Fe and Albuquerque.
Their letter continues:
Making additional snow essentially makes a “frozen reservoir” that downstream communities will be able to use this spring. By making snow, we’re essentially storing additional water throughout the winter. During the spring run-off, this additional snow will melt and return to the Rio Pueblo to the benefit of the downstream users and acequias. According to Taos County Ordinance 2010-4, the majority of irrigation water rights in Taos County are not fully met. Our lease will help downstream water rights holders to receive more water during the irrigation season.
The protest letter submitted by the Dixon/Embudo acequias, published November 12 in La Jicarita, addresses this claim, citing impairment of water rights (one of the criteria used by the OSE in its review of water transfers). The acequias contend that contrary to the ski area creating a “frozen reservoir” that will benefit downstream water rights users in the spring, the pumping of the Rio Pueblo in November and December will impair ongoing irrigation within the communities, as well as “make the saturation zone drier and diminish the plume of underground water from the river which replenishes our wells.” The acequias further contend that “The timing of the melt and the time when we have shortages of irrigation water do not coincide. In fact, the timing of the ski area runoff coincides with the peak of the natural spring runoff, and only serves to increase the risk of damaging flooding. We are far more in need of the water in fall and winter to irrigate, fill our wells and provide moisture to the soil.”
And finally, the letter states:
The cultural wealth of Taos County includes water for the ski industry. According to Taos County Ordinance 2010-4, the County recognizes that water is used to benefit large and small family farms and gardens, ranching operations, the ski industry and the County’s important fisheries and wildlife populations. Our lease will help our resort and it will also support many of the other users listed above.
The protest letter submitted by Carson National Forest claims the application is contrary to the conservation of water (another criteria used by the OSE in its review of water transfers) by threatening “harm to existing aquatic ecosystems and fisheries habitat of the Rio Pueblo during low flow conditions.” The protest also addresses the public welfare (another of the OSE criteria) of the downstream agricultural users who will not directly benefit from the offset of water released from Heron Reservoir: “22 miles of the Rio Pueblo and Embudo Creek potentially is harmed by this application.”
Carson National Forest’s Greg Miller told me that the agency’s protest letter was essentially filed to ensure that certain concerns are raised in any review of Sipapu’s application and that the other protests cover most of the same concerns. Not addressed in the other protests, the Carson letter raises the issue of pre-existing national forest reserved rights that may be at risk from this Application. Interestingly enough, I had just finished reading the chapter in a new book, One Hundred Years of Water Wars in New Mexico, that addresses the very issue of federally reserved water rights. The book, published as part of the New Mexico Centennial History Series by the New Mexico Water Resources Research Institute, includes chapters on some of New Mexico’s most notorious “water war” conflicts, many of them precedent setting legal cases. Richard Simms’s chapter on reserved water rights, United States v. New Mexico, tells the long and complicated story of how a case that started out as a fight between an irrigation company and two ranchers ended up before the U. S. Supreme Court (Simms was the lawyer who argued the state’s case before the Court). United States v. New Mexico considered whether the concept of federal reserved water rights, as stipulated in the Winter’s Doctrine that set aside these water rights for Indian reservations, could be extended to include other federal reservations such as National Recreation Areas and National Forests. When the case was still between the irrigation company and the ranchers, a decision was rendered that the United States was not entitled to reserved rights for minimum instream flows (an issue that sill arises from time to time), for recreational uses of any kind, or for any kind of water use made by private users as permittees of the Forest Service.
That decision was eventually appealed by the U.S. government to the U.S. Supreme Court, which rendered a decision that the Forest Service’s reserved rights were limited to the two purposes of the establishment of national forest lands: managing the watershed to maximize water availability and to provide a continuous supply of timber production.
It’s unlikely that any discussion of Forest Service reserved rights will be argued in a protest of the Sipapu water transfer application, but under legislation such as the Endangered Species Act and the Clean Water Act federal jurisdiction over western water has increased. And certainly the federal government plays a significant role in the outcome of many of the state’s adjudications where Indian Pueblos are involved.
The Taos County Advisory Board will continue to monitor the Sipapu/Jicarilla Apache water lease and transfer application, as stipulated in Taos County Ordinance 2010-4.