By KAY MATTHEWS
I last reported on the status of Taos County’s protest of the Top of the World water transfer in March of 2016. Since then things have quickly progressed in a hearing before the Office of the State Engineer in the face of a September 2017 deadline for finalizing the Aamodt Settlement.
To quickly recap, the TOW transfer will move 1,711 acre feet per year (afy) of underground water rights from the Sunshine Valley area near Questa into the Pojoaque Valley Regional Water System as part of the Aamodt Adjudication Settlement. Eleven hundred acre feet 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 residents. Two-thirds of the 1,711 afy of water is currently being leased to the town of Questa, and the other third is being used to farm at TOW.
The TOW application is one of three before the OSE that propose to move a combined consumptive use of 4,000 afy into the Pojoaque water system: 2,500 afy for the pueblos and 1,500 afy for the non-Pueblo users.
The transfer’s co-applicants, Santa Fe County, which represents the non-Pueblo water rights holders in the Pojoaque Valley, and the Bureau of Indian Affairs (under the Department of Interior), which represents the Pueblos, filed the application in early 2015. In July, after publication of the application in the Taos News and other newspapers, Taos County, along with several other individuals, filed protests of the transfer with the Office of the State Engineer, the state agency that is responsible for approving or denying transfers. All protestants except Taos County were dismissed by the OSE for not meeting the requirements necessary to proceed with a protest under state statute.
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 the public welfare of the state.
After witness lists were submitted to the OSE in March, and prior to the hearing before an appointed OSE hearing examiner in October, applicants sought to get one of the attorneys who represent Taos County dismissed. Santa Fe water attorneys Peter Shoenfeld and Jennifer McCabe were hired by Taos County in June to represent its interests in the TOW water transfer protest. Attorneys for the Pueblos claimed that because Shoenfeld had previously represented clients in the Aamodt Adjudication Settlement and signed a confidentiality agreement he should be disqualified from the hearing. Once it was established that a confidentiality agreement didn’t preclude him from representing Taos County, a different client, they attempted to have him dismissed on the grounds of conflict of interest. The hearing examiner ruled against them and Shoenfeld continues to represent Taos County in the protest.
At the October 6 and 7 OSE hearings the attorney for the Water Right Division, which represents the OSE in water transfer protest cases, objected to Taos County’s expert witness on public welfare, Dr. Jose Rivera, a retired UNM professor of architecture and planning, who has testified previously in water transfer cases and published papers on the issue of public welfare. Ironically, the WRD attorney Kris Knutson claimed that because there is no official definition of public welfare Dr. Rivera couldn’t be an expert. 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 the public welfare 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. The Taos County attorneys fought for Dr. Rivera’s right to testify and although he ended up being classified as an expert on acequia culture and “public administration” his testimony on public welfare is now on record.
Rivera focused on the importance of determining what constitutes the public welfare of the state in water transfers such as Top of the World. To rely on an economic interest, or the idea of the highest and best use, infers that one area of New Mexico—and it’s usually urban— is more important than another, which fails to acknowledge New Mexico’s diverse population that includes pueblo and acequia communities. Inter-basin transfers could destroy this diverse fabric of the state. (At a recent Water and Natural Resources legislative committee hearing State Senator Peter Wirth noted that inter-basin transfers might not be welcome in New Mexico: “We really need to look at this.”)
Rivera also pointed out that the New Mexico State Water Plan mandated regional water planning and a component of that planning was to determine what constitutes the public welfare of each region, which could best be developed by local stakeholders and could work to protect water resources from outside interests looking for water. All the regional water plans include public welfare criteria, such as cultural protection, agrarian character, watershed health, recreational opportunity, etc. The Taos County Regional Water Plan tried to set up an advisory committee that would review all transfers both from and within Taos County to determine if they met the public welfare criteria of Taos County (see La Jicarita News, March 2008). When Attorney Knutson raised the objection that the OSE couldn’t hear a public welfare argument because it hasn’t been defined, he was right only in that the OSE has no business trying to define what the state’s regional water plans have already defined. The applicants didn’t call anyone as a witness on public welfare.
Ron Gardiner was also on the Taos County’s expert witness list; as La Jicarita readers know, Ron died unexpectedly on September 25 before the hearing took place. Ron was a repository of information regarding Taos County watershed health and forest restoration and shared his knowledge on numerous county committees including subdivision regulation and land use planning. He and I also worked together on the Taos Regional Water Plan to develop a Public Welfare Statement and later served on the Taos County Public Welfare Advisory Committee, which was set up by county ordinance after it was excluded from the Taos Regional Water Plan (see La Jicarita News, November 2010). His testimony would have been an invaluable asset to the County’s arguments regarding public welfare. As a substitute for Ron, Taos County Planner Nathan Sanchez submitted the county documents that pertain to the issue of public welfare.
The other substantive issue at the hearing involved the hydrological implications of moving 1,711 afy from Top of the World to the Pojoaque Valley. The applicants claim that once the wells at TOW are retired, the groundwater will migrate to the Rio Grande, where it will travel downstream to the takeout at San Ildefonso Pueblo and be diverted, according to the Pojoaque Basin Regional Water System Environmental Impact Statement, “either by diverting surface water into a side intake structure or by collecting groundwater that is hydrologically connected to the river through the use of horizontal collector wells.”
The applicants’ witness Neil Deeds addressed three components of the supposed hydrologic connection between TOW and the Pojoaque Valley: the timing and accrual of water at the move from area at TOW; the transmission or carriage losses from TOW to San Ildefonso; and potential impacts of the diversion at San Ildefonso Pueblo. The Taos County attorneys challenged his testimony that relied on Bureau of Reclamation data without an onsite inspection and specifically challenged his claim that there would be no evaporative or seepage losses in the transmission of the water between Top of the World and the Pojoaque Valley. They also questioned his information regarding agricultural uses, his chosen Consumptive Irrigation Requirement figures, and the certainty his report provides.
While questions remain regarding the hydrology of the transfer—for instance, how long it will take for water at TOW to migrate to the Rio Grande—the case will be decided on the criteria of public welfare. The hearing examiner set a due date of December 6 for “findings of facts,” or an interpretation of the conflicting views on the facts presented in the hearing. If this were a regular court of law that would be a jury or judge. In hearings before the OSE it is the hearing examiner who will resolve the conflict and issue a recommendation to the State Engineer who will then issue his decision. It seems very likely in this critically important case that whichever party loses at the hearing will appeal the decision to District Court.