Protests Filed Against Top of the World Water Transfer; Important Legislative Water Hearing Scheduled in Taos

By KAY MATTHEWS

Protests have been filed with the Office of the State Engineer (OSE) to the Top of the World Farm (TOW) water transfer from northern Taos County to the Pojoaque Valley. Applicants Santa Fe County and the Bureau of Indian Affairs seek to move 1,700 acre feet per year of groundwater from TOW to a water delivery system as part of the Aamodt Adjudication Settlement. The Water Rights Division has accepted five protests while four submitted by fax are on hold until the department receives hard copies. Several protests did not meet the deadline of July 12.

Taos County’s protest claims that the county has standing as a political subdivision of the state and that the Taos County Public Welfare Ordinance and Taos County Regional Water Plan both call upon the OSE to use local input to evaluate the impact of an application on water conservation and the public welfare. The county officially protests that the transfer is detrimental to the public welfare, contrary to the conservation of water, impairs existing water rights, and fails to comply with the New Mexico State Constitution and OSE regulations.

Several individuals who live in the Pojoaque Valley and are parties to the Aamodt Adjudication are claiming the transfer will impair water rights and is contrary to public welfare. Specifically, they point out that because the type and point of diversion at the move-to area on the Rio Grande have yet to be identified, the OSE cannot adequately assess or identify any impairments “that will ultimately reduce the available surface water in Rio Grande via the Pojoaque Basin Regional Water System.” Public welfare arguments are also based on the reduction of Rio Grande surface water and the fact that other Aamodt Settlement agreements have not been executed.

The fifth protest is from long time Questa activist Juan Montes, who also argues that the transfer is detrimental to the public welfare and will impair water rights. Montes claims that divorcing water from the land and selling it outside of its watershed is detrimental to the public welfare, that reducing the flow of the Rio Grande will impair other water rights, and that the beneficial use of the water by Santa Fe County has not been substantiated.

The OSE will review all the protests, a hearing officer will be assigned, and a scheduling order will be formulated stating the issues and assigning dates for discovery by all parties (in addition to the applicants and the protestants, who may or may not be represented by attorneys, Water Rights Division attorneys represent the OSE at the hearing). I will follow the proceedings and issue periodic reports as the protests move forward.

Taoseños and other norteños also need to be aware that the second meeting (see agenda here) of the Water and Natural Resources Committee in 2015 will take place at the University of New Mexico-Taos in the Rio Grande Hall, 120 Civic Plaza Drive, on July 27 and 28. Of particular note will be the discussion on Monday, at 1:30 pm, on the status of the Abeyta, or Taos Pueblo water rights settlement. The panelists listed on the announcement represent the parties to the settlement: the OSE, Taos Pueblo, the Town of Taos, the Mutual Domestics, and the attorney for the Taos Valley Acequia Association. Objectors to the settlement, as well as those who have criticized and protested the transfers that are integral to the settlement, will have to voice concerns from the floor.

While discussion of the Aamodt Settlement is not included on the agenda, the Abeyta and Aamodt are inextricably linked through decisions that were made behind closed doors as to which settlement would obtain the TOW water rights to meet the terms of the settlement. In response to an e-mail I sent committee chair Senator Peter Wirth, he said that Representative Carl Trujillo had requested that the committee meet to discuss the Aamodt Settlement as well, and Wirth agreed to do so at a later committee hearing.

Another critical discussion will occur on Tuesday at 11:15 am under the heading Protestant Standing in Water Rights Hearings. As previously reported in La Jicarita, there is a movement to place restrictions on the right to protest water transfers before the OSE. Senate Bill 665 was introduced in the 2015 legislative session by Senator Ron Griggs, Doña Ana, Eddy, and Otero counties Republican, that sought to amend various New Mexico State statutes that deal with leasing water, drilling wells, the standing of protestants, and beneficial use requirements. Water brokers and the Stein & Brockman law firm have long been pushing the OSE to restrict due process for water appropriation and transfer protests. Amending Section 72-12-3 NMSA 1978, the bill proposed language that would increase the requirements of protestants: (1) Evidence of a protestant’s standing must be provided in the written protest; (2) If arguing that the application is contrary to conservation or the public welfare the protestant must provide evidence that he or she will be “substantially and specifically affected by the granting of the application; and (3) If the protestant is arguing conservation or public welfare, “alleged impairment to the protestant’s water right cannot also be the basis to claim the protestant is substantially and specifically affected by granting the application.”

Jim Brockman is listed as one of the participants on Tuesday’s panel along with Connie Odé, a water rights attorney, and Paula Garcia of the New Mexico Acequia Association. Again, it’s important for folks to be there to explain not only why it’s important to retain due process for protestants but that opportunities to protest on the grounds of public welfare should be expanded. Hopefully, Taos County’s public welfare arguments against the TOW transfer will initiate a dialog in which the OSE has been reluctant to engage and water brokers have done everything in their power to limit.

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