My Lawyer-less Protest of a Water Transfer Continues: At Least for Now

By KAY MATTHEWS

None of the stalwart subscribers to the NM State Water Plan yahoogroups listserve took a holiday break. In fact, their e-mails have been flying fast and furiously about all kinds of water issues: misrepresentation and “illegality” in the Lower Rio Grande Adjudication; the unfairness and “illegality” of water adjudication settlements in general; the need to adjudicate the Middle Rio Grande, which will affect every water source along the river; why the state won’t enforce priority administration and why some folks like it that way; the failure of adjudication settlements to factor in drought and climate change; and the nefariousness of water lawyers, one of whom wrote in to defend her profession. With all this in mind, I present the following update on my personal attempt to address the inequities of the Abeyta Adjudication Settlement.

I’m still in the game, at least for now. Last October I wrote an article for La Jicarita detailing my attempt to represent myself at a water transfer protest before the Office of the State Engineer (OSE). The applicant, Taos County’s El Prado Water and Sanitation District, filed a motion to strike me as a protestant claiming I lack standing, but after an oral hearing, which I will describe more fully a little later, the OSE Hearing Examiner granted me standing so that the protest can proceed.

To recap why I’m pursuing this protest

As a party to the Abeyta Settlement, or Taos Pueblo Adjudication, El Prado Water and Sanitation District is seeking to increase its water rights from 25 to 575 acre feet per year (afy) by adding two deep wells to its system that will be drilled near U.S. 64 and the Gorge Bridge, supposedly tapping into the Rio Grande Basin. This new appropriation of water will have to be offset by the transfer of other water rights, which the district is seeking from the Top of the World (TOW) area north of Questa. You may recall that over a thousand afy of TOW water rights belong to Santa Fe County and the Department of the Interior, which seek to transfer them to the Pojoaque Basin as part of the other big northern New Mexico adjudication settlement, the Aamodt.

The Taos County Board of Commissioners protested the application to transfer water rights to offset the new wells, based on the recommendation of the Taos County Public Welfare Advisory Committee. This committee was created by the Taos County Public Welfare Ordinance to review all water transfers from and within the county to determine if they are in the public interest of county citizens. The Advisory Committee recommended to the county commission that it protest the application to appropriate water from the two new wells as well, but the commission didn’t meet in time to review the recommendation. As a member of the Advisory Committee I protested the transfer as an individual in an attempt to bring both of these applications, which are part of the same project, before the scrutiny of the OSE, and the public.

As I explained in my October article, pursuing a protest is like participating in a trial: there is a pre-hearing conference to set a schedule; both protestants and applicants must provide a witness list, proceed with discovery, call witnesses, etc.; and finally there’s a hearing before an officer of the OSE, the agency that approves or disapproves transfers.

Arguing my case

At an oral hearing before the Hearing Examiner and the OSE Water Rights Division, I was given the opportunity to defend my right to protest. The only ones in the room who weren’t lawyers were the administrative assistant who was recording the proceeding, Candyce O’Donnell, the newly elected Taos County Commissioner from my district, John Painter, the head of El Prado Water and Sanitation District, and me. I was the only non-lawyer who got to talk, however.

After Jim Brockman, lawyer for El Prado, reiterated his claim that under state statute I don’t meet the criteria of being “substantially and specifically affected by the granting of this application,” I presented my case. A water transfer protest is evaluated on three criteria: that the transfer/appropriation would impair someone else’s water rights; that it is contrary to the conservation of water; or that it’s contrary to public welfare. My protest is based on the public welfare argument that has been defined by the Taos County Public Welfare Ordinance. I’m not claiming that the drilling of the two new wells or the transfer of the TOW water will impair my water rights (I have water rights on two acequias in El Valle). I’m arguing that as a citizen of Taos County the two applications are detrimental to the public welfare of all county citizens.

Public welfare has never actually been legally defined in case law in a water rights decision. I’m pursuing my protest so that we can move towards a definition of what constitutes the public welfare regarding the movement of water.

Interestingly enough, at the oral hearing both El Prado and the OSE seemed more interested in whether I could legally argue that my water rights would be impaired by the applications. Brockman brought a map showing that my water rights, in El Valle, are not in the same watershed as the transfer and appropriation. The OSE water rights lawyers responded that the water El Prado wants to move isn’t in the same watershed as the move-to wells, either, and that “water is being moved up and down the Rio Grande all the time from one watershed to another.” The issue of impairment is often addressed in those hearings. I distinctly got the feeling that neither El Prado nor the OSE wanted to open the door to a public welfare argument, which actually might set a precedent.

Several weeks later we received the Hearing Examiner’s decision: I was granted standing and the right to proceed with my protest. Reflecting the impression I had at the hearing, the OSE’s decision addressed the issue of impairment—that I provided a “minimal amount of information” required for my continued participation pursuant to state statute: “An OSE analysis of the effects of granting an Application for Permit must incorporate all State Engineer permits and water rights including the water rights that Matthews allegedly owns.”

The only mention of public welfare was that El Prado based its motion to strike me as a protestant solely on the grounds of public welfare and conservation of water within the state.

But alas, ten days later Brockman filed another motion—14 pages this time—with the OSE asking the State Engineer to reconsider the decision to allow me standing. Many of the pages reiterated the original argument that I haven’t proved I would be “substantially and specifically affected by the granting of this application,” regarding either impairment or public welfare, and that the Hearing Examiner’s decision creates a “very expansive standard that assures that nearly every protestant will be able to withstand a challenge to his or her standing.” Brockman also claimed that my protest will extend what could have been a hearing process of several months to 1½ to 3 years and cost each applicant $150,000 to $750,000 (that sounds a little exaggerated to me). He also says that a decision by the Hearing Examiner on standing can’t be appealed to district court until the case goes through the entire hearing process. He goes on to say that, comparatively, I have limited costs in time and resources. Au contraire, Mr. Brockman. While I’m not planning on spending much (any) money, I’m spending a lot of my time, and unlike yourself, and the rest of the lawyers around the hearing table, I’m not getting paid.

So now we wait and see if the OSE reconsiders its decision to grant me standing. Round and round we go, where we stop nobody knows.

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8 comments

  1. Kay, Thank you so much for fighting on with your protest. I can just see and feel the pressure in the room over them having to deal with a non lawyer. It only serves them right for trying to push an agenda without all of the necessary information considered. I hope you prevail to the end. I bet it won’t be you that keeps on stalling going forward.

  2. Thanks Kay, for your efforts. We tried to protest a water transfer on the basis of public welfare and were blown off. I hope you succeed in your efforts to remain a part of this case. Carol Pittman Datil NM

  3. The aquifer North and West of Taos is what we might call a Fat aquifer. It is prolific and the effects of pumping on nearby wells are very little and spread quite far. I have conducted aquifer performance tests on wells up there. The State Engineer will evaluate impairment that might be caused by the wells. There are surface water watersheds and groundwater watersheds. When they coincide with each other they are harmonious. But, they are often disharmonious and the boundaries of each do not agree. So when dealing with groundwater one must pay attention to the groundwater watershed. And, while there may be a distinct groundwater watershed it is based on the groundwater level contours. The groundwater of two watersheds is likely in hydraulic continuity and the pumping of a well may cause groundwater level declines in another groundwater water shed. The boundary between two groundwater watersheds may shift. To come up with answers costs a great deal of money unless the State Engineer has already created a computer model as they have for many areas of the State. Peggy Barroll or Jack Frost of the OSE Office in Santa Fe would know if there is a model of the area. If so, it is pretty trivial to run it to determine the impact of the wells. The OSE may have already run it. One simply changes the groundwater extraction rate at the location of the wells in the WEL input file and presses the go button. We usually do this in the Lea County Basin before we even offer a water right for sale. If there is di minimus drawdown the OSE will likely approve the transfer and no one is damaged. Fortunately our new State Engineer is highly familiar with all of this and the Technical Department of the OSE is very competent and honest and has done many many of these studies. I have been present when Peggy Barroll has delivered the bad news in a public meeting. In that case, even though you had to be a hydrologist to catch it. I caught it though and an interesting discussion followed.

    Bill Turner /WATERBANK

  4. Thanks to all of you for writing in and expressing your support. If my protest is dismissed on procedural grounds, it’s vitally important that Taos County’s protest proceeds so that the case against this proposed appropriation/transfer is heard. Those of you who live in Taos County please contact your county commissioner and let her/him know that you support the county’s protest, which is based on public welfare criteria. As I’ve reported previously in La Jicarita, Commissioner Blankenhorn has expressed reservations about the county pursuing the protest, despite the evidence presented by the Taos County Advisory Committee that El Prado’s application is not in the best interests of the citizens of Taos County.

    Kay

  5. Though you may have standing at a hearing you will have to put on technical evidence. 575 af/yr is 356 gpm. If there is a model, I will get it and tumble the numbers for you. If the results do not indicate impairment, you should drop your protest. I don’t think the OSE will approve an application for new water because they have claimed many times there are shortages of surface water while I do not necessarily agree with this. They just use this claim to put down applicants who may have a legitimate use to use the water. I have no axe to grind in this contretemps.

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