Commentary by KAY MATTHEWS
On January 12 of this year Santa Fe County and the Bureau of Indian Affairs (BIA), unbeknownst to anyone in Taos County, filed an application with the Office of the State Engineer (OSE) to transfer approximately 1,700 acre feet of water rights from Top of the World Farm (TOW) in northern Taos County to the Pojoaque Valley to meet the terms of the Aamodt Settlement. The Taos County Public Welfare Ordinance, passed in November of 2010, requires any entity that files an application with the OSE to transfer water within or from Taos County to concurrently file a copy of the application with the Taos County Clerk. This notification allows the Public Welfare Advisory Committee, established under the auspices of the Ordinance, to then start the process of analyzing the application using the Ordinance’s public welfare criteria to determine whether the transfer is in the best interest of the citizens of Taos County. I called the Taos County Clerk after Santa Fe New Mexican reporter Staci Matlock told me that the application had been filed (see Matlock’s article here): there is no record of the application in the clerk’s office. I also called Santa Fe County attorney John Utton to verify that the county and the BIA never filed the application with the clerk’s office, which he confirmed. He was unaware of the Ordinance and indicated that it was not his responsibility to address the fact that Santa Fe County and the BIA are in violation of the Taos County Public Welfare Ordinance.
Santa Fe County has owned the TOW water rights for a number of years but recently sold 1,100 afy of the water to the BIA for delivery to the pueblos in the Aamodt Settlement. The county will supply water to the non-pueblo residents of the Pojoaque Valley. Over the last few years I periodically called Utton to try to get an idea of when the county and the BIA would actually file to transfer the water rights. When I spoke with him in December of 2014 he told me he didn’t have a time frame but anticipated there would be a joint application within “a few months.” That was a quick few months.
Now three months have transpired during which the Public Welfare Advisory Committee could have been doing due diligence on the TOW transfer application. There are many questions to ask and much information to gather regarding the hydrological basis of this transfer. The Aamodt Settlement’s rationale for the transfer, based on OSE modeling, is that because the deep irrigation wells at the Top of the World Farm will be shut down—the area has been farmed over many years, by many different owners—the water in the underground aquifer will migrate to the Rio Grande and flow downstream to the takeout on San Ildefonso Pueblo to supply the water deliver system to the pueblos and non-pueblo parties in the Pojoaque Valley. Over 700 of the non-pueblo water rights owners, referred to as “defendants” in the Aamodt adjudication process, have filed objections to the settlement, many of which concern the water delivery system (see my La Jicarita, December 14 article for a more complete explanation of the objections). One hundred and ninety of those defendants also filed a lawsuit against the Aamodt settlement in May of 2014.
In a very unusual move, Taos County residents and philanthropists Trudy and Ed Healy are buying what is now the dry land acreage of Top of the World Farm. Yesterday, March 17, the New Mexico Board of Finance approved the sale of 3, 166 acres for $1.17 million to the Healys. The board also approved an annual lease of 611.5 afy to the Healys for a minimum of $30,000 per year. The Healys plan to employ the holistic grazing concepts that Allan Savory developed in their management of the Farm.
If the Public Welfare Advisory Board recommends to the Taos County Commission that it protest the application to transfer TOW water rights, which in all likelihood will be the case, it will be interesting to see if the county commissioners who voted to drop the county’s protest of a proposed transfer in the Abeyta Settlement, or Taos Pueblo adjudication, which governs water rights in the Taos Valley, agree that a protest involving the Aamodt Settlement should proceed. The rationale that commission chair Tom Blankenhorn used for dropping the Abeyta protest is that the terms of the settlement, backed by the OSE, should not be opposed by the county, even though it was not a party to the agreement. If that rationale is extended to the Aamodt Settlement, also backed by the OSE, then 1,700 afy of water will be gone forever from Taos County.
There will no doubt be other groups and individuals who will protest the Santa Fe County and BIA water transfer application. They will be guaranteed a hearing by the already overburdened OSE if they can prove standing based on impairment, water conservation, or public welfare. Taos County has the weight of the Taos County Public Welfare Ordinance to argue that these transfers are not in the interest of the public welfare of the citizens of Taos County. We should have had that hearing on the Abeyta Settlement proposed transfer. We absolutely need to have that hearing on the TOW transfers.