By KAY MATTHEWS
Two themes emerged at the Taos County Commission “work/study” meeting on Tuesday, January 27 to talk about the Abeyta Settlement, and more specifically, the county’s protest of El Prado Water and Sanitation District’s water transfer application. Number one: to satisfy water allotments to the parties in the Abeyta Settlement we’re going to be mining groundwater and offsetting it with paper water. Number two: the reason we’re doing this is to satisfy the special interests of the parties who were able to call the shots in the settlement because of a lack of transparency.
El Prado 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.
Taos County’s protest is based on public welfare, one of the three criteria the Office of the State Engineer (OSE) uses to decide whether to approve a water transfer application. Taos is the only county in the state that has an ordinance that defines what constitutes the public welfare of its citizens and could set precedent in arguing its case before the OSE: public welfare has never been legally defined in case law in a water rights decision.
The stakes are high in this protest, and the folks who showed up on Tuesday to urge the county to proceed with it grilled El Prado, represented by John Painter, Telesfor Gonzales, and their attorney Jim Brockman, with a wide range of questions.
The most obvious question is can El Prado justify an increase in water rights from 25 afy to 575 afy when statistics reveal that water demand has actually dropped? Painter’s stock answer to this question is always that El Prado needs to buy up existing water rights to “keep them in the county” and “plan for the future.”
Taking a closer look at the past might reveal what kind of future he’s talking about. Over the years Painter has been involved in several development and water brokering schemes. In the early 1990s the Taos community was threated by the potential development of Las Sierras, a huge resort plan that included a 320 acre, $40 million golf course and country club surrounded by 150 homes in Las Colonias, and a 216-room Las Sierras Inn, Spa, and Conference Center, with a near-by attached commercial center on Taos Mesa. The developers had already applied to El Prado Water and Sanitation District to transfer 140 acres of surface water rights from the Las Colonias property where the golf course was planned to its well in Upper Las Colonias, from which water for the development would be pumped. Estimated consumption would be 400,000 gallons of water a day at its peak. Several people pointed out what they saw as a conflict of interest between John Painter and Telesfor Gonzales and the developers: Painter worked for David Buck, the real estate agent behind the development, and Telesfor Gonzales owned land where the sewage treatment plant was proposed.
Another conflict of interest charge revolves around the water rights that El Prado proposes to buy from Montoso Bison Company (Cerro San Cristobal Ranch) for $340,000, located in the Top of the Word Farm area in northern Taos County. Painter has worked as both ranch manager and contractor for owner Alfred Keller for more than 20 years. The state money to purchase these water rights is guaranteed by the Abeyta Settlement, but after state water managers complained that the purchase price of $20,000 per afy was above market value, El Prado sued the state. They are currently in settlement talks.
When someone at Tuesday’s meeting asked Painter about the potential of development along the U.S. 64 corridor he responded that anyone will be able to hook up to the water lines that will carry water from the two deep wells near the Rio Grande to El Prado.
Other important questions were asked about the recharge values of the proposed 1,000 foot wells and whether the transfer of water from Top of the World is “real” or “paper” water. As Bill Whaley referred to it in Wednesday’s Taos Friction, the “hydrological shell game” in which El Prado is engaged means pumping water from deep, underground wells that may affect both shallower tributary water and Rio Grande springs and may not be renewable—at least for hundreds, if not thousands, of years. As required by New Mexico state water law, these depletions must be offset by water transfers from other areas, in this case, the water rights from TOW. So wells at TOW are no longer pumped, that underground water migrates to the Rio Grande, turns up as surface water, and replaces the water pumped from El Prado’s deep new wells, which are hydrologically connected to the river. Paper or real? Depends on which hydrologist you hire.
Another Abeyta water transfer was also discussed at this meeting, as people from both the move-from area—Questa—and the move-to area—the Acequia Madre del Rio Lucero y del Arroyo Seco in the Taos Valley—showed up to ask some questions. It turns out that not only didn’t the folks from Questa know about this component of the Abeyta Settlement, where the 200 afy are being transferred from the Llano Community Ditch, but many of the parciantes on the Acequia Madre didn’t either. Seems there hasn’t been much communication between the acequia commission, whose chairman is Palemon Martinez, and some of the parciantes who are now engaged in updating the acequia bylaws and investigating the ditch’s fiscal management. One parciante raised the issue of a conflict of interest regarding Martinez: as chair of the Taos Valley Acequia Association he negotiated the millions of dollars in state funding to buy the Questa water rights that are being transferred to the ditch on which he serves as commission chair. A significant amount of money is allocated to the development of an Aquifer Storage and Recovery Project on the acequia, which will store water in the winter that will be pumped to the surface in the summer for irrigation.
In the larger scheme of things, the extent of the movement of water in Taos is minor compared to what may happen in several other parts of the state. The OSE will soon make a decision whether a corporation, Augustin Plains Ranch, LLC, will be allowed to appropriate 54,000 afy of underground water in the Datil area and send it to unknown water markets to the north. Opponents tried to argue against this appropriation on the basis of public welfare in 2007, the first time the company made an application, but were shot down. The OSE denied the 2007 application, based on the fact that the company did not specify where the water would go, but the company reapplied and it remains to be seen what will happen in this go round (we have a new, relatively unknown State Engineer, appointed by our corporate loving governor).
The massive 13,700 acre Santolina development, proposed for Albuquerque’s West Side, is expected to serve 95,000 new residents: larger than the city of Santa Fe. Those 95,000 residents are expected to consume up to 38.7 million gallons of water a day, or 43,350 afy. Where are those water rights coming from? Aha! Augustin Plains Ranch may soon have 54,000 afy to offer.
What makes the stakes so high in Taos is the opportunity to help define just what constitutes the public welfare in these water rights appropriations and transfers. The fact that one of the state’s most powerful water lawyers, Jim Brockman, represents El Prado, is also a factor. One of the people at the meeting yesterday asked Brockman if he primarily represents junior water rights holders, meaning urban entities, as opposed to acequias and agricultural interests. He said both, but a listing of his clients reveals an almost entirely urban roster, from Las Cruces to Española. Brockman’s law firm also represented Richard Cook, the Española businessman who challenged the 2003 state statute that gives acequia commissions the authority to deny water transfers if they would prove detrimental to the integrity of the acequia, (the statute also established water banking provisions). As I described in my previous La Jicarita article, “Dismissed as Protestant: It’s a Lawyer’s Game,” Brockman has been pushing the OSE to restrict due process for water appropriation and transfer protestants, claiming they have to prove standing in their written protests.
The Taos County Commissioners may decide as soon as next week whether to go forward with the El Prado water transfer protest. Others who are involved in water deals and settlements—the Aamodt Settlement and the Austin Plains appropriation—are watching closely to see if Taos has the courage to move forward in what could be a landmark case.