By KAY MATTHEWS
Taos County threw away its chance to set precedent by protesting a water transfer based on the criteria of Public Welfare. On February 17, by a three to two vote, the County Commission rescinded its protest of El Prado Water and Sanitation District’s application before the Office of the State Engineer (OSE) to transfer 284 acre feet per year (afy) of water from the Top of the World (TOW) area near Questa.
Commissioners Candyce O’Donnell and Gabe Romero voted to maintain the protest, but Tom Blankenhorn, commission chair, led the charge to withdraw it. As Bill Whaley noted in his column in Taos Friction, Blankenhorn, formerly Taos County Attorney, led El Prado board member John Painter—the driving force behind the transfer application—through his testimony and his answers before the commission. It has always been Blankenhorn’s position that the county should not contest any of the terms of the Abeyta, or Taos Pueblo, Settlement. O’Donnell and Romero felt otherwise: that they represent all the citizens of Taos County, not just the parties to the Abeyta.
The Abeyta Settlement, one of three Indian water rights settlements in the state, was negotiated over a period of many years to satisfy Taos Pueblo’s claim to aboriginal water rights while maintaining sufficient water supply for the other parties to the settlement: the Town of Taos, El Prado Water and Sanitation District, the mutual domestics, and the Taos Valley Acequia Association (TVAA). There are numerous troubling components to the settlement: the drilling of deep mitigation wells to compensate for any surface water depletions; the drilling of two deep wells near the Rio Grande to supply El Prado; and the transfer of groundwater and surface water rights to compensate for aquifer mining. As most of the negotiations were held behind closed doors, the public didn’t become aware of the specific water transfers until they were advertised in the Taos News starting in 2011. In addition to the El Prado transfer application, the Acequia Madre del Rio Lucero y del Arroyo Seco, part of the TVAA, has applied to transfer approximately 100 afy from the Llano Community Ditch in Questa. Palemon Martinez, president of the TVAA, is also president of that acequia. The Llano Ditch, the Cabresto Irrigation District, and the Town of Red River have protested this proposed transfer.
I believe there are two main concerns regarding the county’s withdrawal of its protest. The first, on the macro level, is that Taos County, the only county in the state to have a Public Welfare Ordinance, has the obligation to investigate the ramifications of El Prado’s proposed transfer on the citizens of the county. Those who urged the county to maintain its protest are not trying to negate the entire Abeyta settlement; they raise very valid questions about the effects the two deep Rio Grande wells may have on both the river itself and the shallow water aquifer that supports area wells and surface water. They believe that the OSE hydrologic model that the Abeyta parties used to support the concept of these deep wells is oversimplified, particularly in an area like Taos where the geology and geohydrology are extraordinarily complex. They also point out that the water rights from TOW—groundwater rights—that will be transferred as offsets for the drilling of the wells are “paper” water rights, meaning no one really knows if the underground water from the TOW farms will be providing real, “wet” water to the Rio Grande to compensate for additional pumping. The forum for raising these questions is in a protest before the OSE.
The county is also in the unique position to help define just what Public Welfare means. While Public Welfare is one of the three criteria (impairment and conservation of water are the other two) by which the State Engineer judges the validity of a transfer or appropriation, it has rarely been argued in a protest and has never been established as case law. This is why the county promulgated an ordinance and established the Public Welfare Advisory Committee in 2010 to evaluate all water transfers and appropriations within and from the county.
Defining Public Welfare was first raised in the development of the Taos Regional Water Plan. The volunteer stakeholders and elected officials who worked to promulgate that plan drafted a Public Welfare Statement that first raised the idea of having a citizen advisory committee. This committee would review all water transfers both within and from Taos County and recommend to the OSE whether the transfers would be in the best interest of the public. Once the Abeyta parties got wind of this development they began lobbying against the creation of a committee to evaluate the transfers, even though that committee had no statutory authority to deny a transfer.
In a very ugly takeover, which I documented in La Jicarita News, the stakeholders on the Regional Water Plan who had drafted the Public Welfare Statement were exiled and the idea of an advisory committee was scrapped. Taos County, under progressive management at the time (2009-10), then stepped up and drafted a Public Welfare Ordinance that established a Public Welfare Advisory Committee that would use very specific criteria to help evaluate a water transfer: cultural protection; agrarian character; ecological health; long-term economic development potential; recreation/tourism; public information; water budgets; conservation/restoration; and conjunctive (ground and surface water) management.
The advisory committee recommended that the El Prado water transfer application, which seeks to increase its water rights from 25 afy to 575 afy (it currently uses approximately 100 afy), be protested by the county, and the 2012 commission (with no Tom Blankenhorn) voted to file a protest. This transfer application from TOW is for offsets, or water rights that theoretically compensate for the groundwater El Prado applied to pump from the two deep wells near the Rio Grande. The advisory committee also recommended that the Taos County Commission protest El Prado’s application to appropriate water from wells, but the county was unable to hear the recommendation before the protest period ended. I protested the application as an individual on the basis of Public Welfare but was dismissed for “lack of standing.” (Disclosure: I was chair of the Taos County Public Welfare Advisory Committee at the time.)
The second concern, on the mircro level, is the lack of transparency and the appearance of conflict of interest. El Prado board member John Painter has long been involved in water brokering. As far back as the mid-1990s he helped negotiate the proposed water transfer to Las Sierras, a huge resort and development in the El Prado area that was pushed by real estate developers and fought by the community. The criteria of Public Welfare was raised by the State Engineer at the time, who denied the water transfer based on the fact that the developers failed to present exact figures on how much water the resort might need to be fully established.
Painter is also an employee of the Cerro San Cristobal Ranch, whose owner Alfred Keller has long been involved in water markets and is the owner of 17 afy of TOW water rights (a portion of the total TOW water rights being transferred) that El Prado wants to purchase for $340,000 ($20,000 per acre foot). El Prado was guaranteed $2 million from the state to buy water rights as part of the Abeyta Settlement, but the Interstate Stream Commission (ISC, a subsection of the OSE), which manages the funding, claims that price is above market value. Both sides hired “experts” to determine current market value of water rights. El Prado hired Paul Saavedra, former head of the OSE Water Rights Division, who is now a consultant (a revolving door there?). This is what he concluded: “It appears to me that there are no other water rights offered to El Prado from Alfred Keller. Since there are no other recent transactions to my knowledge in this area, this particular offer of water rights for $20,000 per acre foot of consumptive use, is setting the fair market value at this time, and therefore is at the fair market value.” The ISC got an estimate value of $7,250 per acre foot from Southwest Water Consultants. El Prado sued the agency and they are currently in settlement talks.
To make matters even more suspect, not only is El Prado receiving money from the OSE/ISC, the agency that will ultimately decide if the transfer applications are approved, but Jim Brockman, of the Stein and Brockman law firm, which represents El Prado in the protests, is being paid out of these state funds to fight for the transfer’s approval. Essentially that means that the attorney who is arguing the El Prado case before the State Engineer is being paid for his services by money from the State Engineer.
Last Thursday J.R. Logan of the Taos News reported that even within the ISC and OSE this is a “perceived” conflict of interest. The newspaper received many pages of internal OSE/ISC communication regarding El Prado’s applications through a public records request. OSE lawyer Chris Shaw’s email to ISC lawyer Amy Haas states: “In the instant case, the [Interstate Stream Commission] would essentially agree to pay Jim Brockman to transfer rights in an ongoing protested administrative process.”
At the oral hearing before the OSE Hearing Officer and various OSE lawyers where I tried to defend my protest, El Prado lawyer Jim Brockman argued that protestants should have to prove standing when they file their protest, not during an OSE process that includes the opportunity to submit written responses and appear at an oral hearing. The criterion for this process is laid out in updated policy decisions by the State Engineer to ensure due process. The tension between the agency reps and Brockman and Painter was obvious. The OSE and ISC lawyers had not only been wrangling over the cost of the water rights but dealing with both Brockman and Painter’s complaints that “time is of the essence” and the OSE and ISC are dragging their heels moving these applications forward.
The OSE has accused El Prado of the same kinds of procedural delays. In 2013 the agency notified El Prado that its four applications to transfer Taos Valley tributary acequia water rights (these are water rights in addition to the TOW water rights El Prado seeks) were cancelled for “failure to pursue with diligence.” El Prado, over the course of 32 months, never provided evidence to the OSE that it has complied with specific statues within state water law.
Logan’s story in the Taos News also quoted an e-mail revealing the tension between the OSE and Painter, again from OSE lawyer Chris Shaw to ISC lawyer Amy Haas: “Sorry you missed John Painter yelling at us during the meeting [in 2013] that we were all just being ‘G-d da–ed pains in the a-s.” Haas responded, “I think this literally counts as biting the hand that feeds you.”
The Taos County Public Welfare Ordinance requires that anyone filing a water transfer or new appropriation with the OSE file it concurrently with the Taos County Clerk so that the Public Welfare Advisory Committee has time to review the application under the criteria of the Ordinance. El Prado has never complied. It filed eight applications with the OSE on November 24, 2010, two days before the Ordinance went into effect. When it was forced to re-file applications that the OSE had cancelled it again failed to file with the Taos County Clerk.
El Prado has been involved in many other lawsuits over the years, had to shut down a contaminated well, and owes the OSE over 800 afy that it has over pumped. Painter has also made the offer to supply water from a test well to the contractor for the Taos Airport expansion, another hotly debated (and sued over) issue; it’s El Prado district development along the corridor from historic El Prado to U.S. 64 that will benefit from the airport expansion.
In the larger scheme of things, the OSE probably wouldn’t have upheld Taos County’s Public Welfare protest: the agency obviously doesn’t want to hear arguments against a transfer based on Public Welfare. As Michael Jensen of Amigos Bravos wrote in a letter to the Water Assembly several years ago, “the ISC/OSE never wanted to have public welfare applied to intra-state water transfers and is perfectly happy passing the buck to the Regional Water Plans, as long as they don’t do something crazy like actually developing an implementation plan that is in step with the ‘values’ contained in the Public Welfare Statement.” In my individual protest, based on Public Welfare, I was dismissed for lack of standing based on impairment, a criterion I never raised. Public Welfare is anathema to the OSE/ISC.
But the OSE would have been forced to hear Taos County’s Public Welfare protest and the county could have appealed a negative decision and created case law. It has the weight of a unique ordinance behind it and the opportunity to set a precedent that will help protect our water resources by providing oversight and analysis over the movement of water that often benefits the few over the many. When Santa Fe County and the federal government file their applications to transfer 1,500 afy of water rights from TOW as part of the Pojoaque Valley Aamodt Settlement, is the Taos County Commission going to support that transfer because the OSE is also a signatory to the Aamodt and we should respect the terms of these settlements without question? Folks in the Pojoaque Valley are also actively fighting implementation of their settlement; I’ll write a follow up article on their issues next week.
Tanya: There’s an opportunity to influence how water law unfolds in the state. I don’t believe the science of hydrology has been appropriately studied. Will that water from the Gallaher Ranch arrive where it’s supposed to in a timely fashion, Will mitigation wells work?
Gloria Atencio: Painter has been in violation of Taos Ordinance 4-10; applicant has to file application with clerk on same date as with the OSE. My concern with mitigation wells, compared to drilling of wells in southern New Mexico. Palemon Martinez, president of TVAA, was aware that Arroyo Hondo ditches have water sharing agreement. 10 afy is being transferred to El Prado/
Boyd Hersh, El Prado, will you serving people who aren’t interest in conserving water.
Stella Gallegos: El Salto, regional water association, mutual domestics.I just found out that our former president never informed members he signed off on Abeyta Settlement agreement. We had annual meeting two days ago about regionalization. More development, why can’t we be on our own. Other board members didn’t even know about it. What do we do now. State won’t give us any funding if we don’t regionalize. We’re being held hostage.
El Salto resident: Ham Brown signed Abeyta Settlement without consulting with community members. Been there 32 years, our water association has worked wonderfully.
Blankenhorn: defends settlement, each mutual gets funds to acquire water rights. None of parties to Abeyta can oppose transfer: what had happened previously was these transfers were opposed by Pueblo.
We already have our water rights; members were not allowed to vote on this.
Jerome Lucero: mayordomo on Spring Ditch. Mitigation wells need to be carefully analyzed. I hope you protest El Prado’s application.
Some environmental woman. Want to remind everyone that protecting our water is all our responsibility.