By KAY MATTHEWS
The protestants to the Top of the World (TOW) Farm transfer of water rights from northern Taos County to Santa Fe County submitted their witness lists to the Office of the State Engineer (OSE) hearing officer on Friday, March 4. Water transfer protests notoriously take a long time to wend their way through the bureaucratic protest process, but by summer we should know whether the OSE will in this case be forced to make a decision regarding a water transfer based on the public welfare criteria.
For many years the only basis for protesting a water transfer was the impairment of someone else’s water right. In 1985 the state legislature finally added the criteria of public welfare and conservation to the state statute that governs water transfer protests. But the OSE has avoided like the plague making any decision based on public welfare because it’s seen as a Pandora’s Box: to define what is in the best interests of the public when it comes to the movement of water would demand a broader scrutiny of transactions that are only seen through an economics lens, or what is the “highest and best” use of the water. Public welfare has never actually been legally defined in case law in a water transfer decision and the OSE would like to keep it that way.
All of the protestants to the TOW transfer will be basing their arguments on public welfare. To briefly recap, the TOW transfer will move 1,711 acre feet (afy) of underground water rights from the Sunshine Valley area near Questa to the Pojoaque Valley as part of the Aamodt Adjudication Settlement. Two-thirds of these rights are slated for the pueblos in the adjudication—Pojoaque, Tesuque, Nambe, and San Ildefonso—while 611 afy are earmarked for the non-pueblo water delivery system. Two-thirds of the 1,711 afy is currently being leased to the town of Questa, and the other third is being used to farm at the TOW location (a portion of the TOW Farm was recently purchased by Trudy and Ed Healy, longtime norteño philanthropists, who plan on managing the soon to be dry farm under holistic range management).
The Taos County Board of Commissioners protested the application to transfer the TOW water rights 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 ordinance spells out the criteria the committee uses to evaluate the transfer: cultural protection, agrarian character, ecological health of watersheds, long-term economic development potential, recreational tourism, public information, water supply management, conservation, conjunctive management, and minimizing water contamination. The county came up with this broad list of criteria after the Taos Regional Water Plan failed to incorporate this kind of oversight in its public welfare statement. It provides the OSE with standards upon which to judge each water transfer that comes before a hearing officer.
Taos County will rely on the testimony of a number of experts: Peter Vigil, director of the Taos Soil and Water Conservation District; administrative officials of Questa and Taos County; members of the Taos County Public Welfare Advisory Committee (full disclosure: I’m the former president of the Committee and am included on the witness list); and Dr. José Rivera, a professor of community and regional planning at the University of New Mexico. Dr. Rivera has previously testified in water transfer hearings based on the public welfare criteria.
The other protestants to the transfer are three landowners who live in the move-to area of the Pojoaque Valley and are members of Northern New Mexicans Protecting Land, Water, and Rights as well as defendants in the Aamodt adjudication (David Neal, Tim Cash, and Beverly Duran-Cash, all pro se protestants). The group has raised many public welfare questions regarding the settlement that they believe need to be answered before any water should be transferred to a water delivery system: will enough residents choose to hook up to the system to make it viable; why were some communities excluded from the system; will there be sufficient water long term to supply the system; will the proposed water storage system be adequate; are the system cost estimates valid; and will the quality of the river water be assured.
The three NM Protests protestants hope to get some answers to these questions from the witnesses on the list they submitted to the OSE. They include: a representative of the Bureau of Reclamation, which is responsible for the Environmental Impact Statement being promulgated for the water system; the Santa Fe County manager, utility director, and district commissioner (Santa Fe County will operate the water system); Aamodt defendants who are members of the Pojoaque Basin Water Alliance and objectors to the settlement; hydrogeologists who can testify about the water supply at TOW Farm and its flow rate to the Rio Grande; and the governors of the four pueblos that are part of the Aamodt Settlement.
As we’ve often pointed out in La Jicarita, and others have argued as well, these kinds of transfers are paper transfers: there is no guarantee that unused groundwater in the TOW area will migrate to the Rio Grande and flow downriver to the move-to area as surface water in the Pojoaque Valley. In order for a transfer to involve “real” water there needs to be a proven hydrological connection between the move-from and move-to area. In the case of the TOW water there are conflicting claims as to how much and how fast the underground water will migrate to the move-to areas. In a conversation with Dave Neal, he expressed his frustration over what he calls the “inconsistences” in managing the Rio Grande; in real time we don’t know how many straws are sucking up how much water, the amount of conveyance losses that deplete the overall flow, and how climate change and drought will affect both native and San Juan/Chama supply. This is what must be part of a public welfare discussion.
La Jicarita will continue to cover the TOW protest hearing and keep readers updated.