By KAY MATTHEWS
Taos County protested the proposed transfer of 1,752 acre feet of water rights from the Top of the World Farm in the northern part of the county to the Pojoaque Valley as part of the Aamodt Adjudication Settlement in October of 2016. These water rights are slated for the Pojoaque Basin Regional Water System, which will deliver water from the Rio Grande via pipeline to the four pueblos in the adjudication—Tesuque, Pojoaque, Nambe, and San Ildefonso—and the non-pueblo residents of the Valley. Final papers were filed in December; a decision was expected immanently.
It’s now four months later and no decision has been rendered by the OSE. All water transfers and funding for the Settlement must be in place by September 15 of this year, 2017 (construction of the Regional Water System has until 2024 to be completed) or the Settlement will be scuttled, and all the parties to the adjudication will have to devise a new settlement (this one has taken over 50 years) or go to court. Whichever party is on the losing end of the decision—Taos County, the area of origin, or Santa Fe County, where the water is supposed to go—will no doubt appeal that decision. Any such appeal will never make it through the court system by September of 2017.
Much to my surprise, when I asked John Utton, Santa Fe County attorney, how the powers that be could let this decision linger long enough to jeopardize the entire settlement, he told me that “The Aamodt deadlines do not require that all appeals be exhausted, only that the State Engineer approve the transfer prior to September—so if that happens as expected there won’t be a deadline issue.” He sent me the pertinent section in the Settlement Act that says that in order to meet the terms of the settlement the water rights have to have been “acquired and entered into appropriate contracts” and “permits have been issued by the New Mexico State Engineer to the Regional Water Authority” and that “the permits shall be free of any condition that materially adversely affects the ability of the Pueblos or the Regional Water Authority to divert or use the Pueblo water supply . . . .”
What Utton is saying, then—aside from his assumption that the transfer will be approved—is that the State Engineer can issue a permit for the TOW water rights even if that transfer is under an appeal before District Court. This brings up several immediate questions: 1) Isn’t an appeal a “condition that materially adversely affects” the decision approving the transfer; and 2) If a transfer that is under appeal can be considered permitted under the terms of the Aamodt Settlement doesn’t that negate the entire process of a water transfer hearing? I asked Utton this question and he responded that “The material condition provision applies to any condition that the State Engineer might place on the permit. It has nothing to do with an appeal.”
The opportunity for appeal to district court is part of the water transfer protest process, guaranteed by the New Mexico Constitution, Article XVI, Section 5 and New M exico State Statutes Annotated, Chapter 72, Article 7, Appeals From State Engineer 72-7-1. The Hearing Unit Procedures lay out steps the Hearing Examiner and State Engineer must follow in a transfer protest. Under 220.127.116.11 FINAL DECISION: D. FINALITY, it states: “A decision of the state engineer is final after 30 days, unless an appeal has been timely filed in accordance with NMSA 1978, Sections 72-2-16 and 72-7-1. The state engineer shall not seek enforcement of a compliance order until it is final, except where an emergency exists or the public health or safety necessitates.” [emphasis added]
Utton’s interpretation of the terms of the settlement seems to abrogate the New Mexico Constitution, state statute, and OSE regulations. I asked Taos County for a response, but it declined to comment. When I asked several New Mexico water law attorneys for their opinion the consensus was that a permit to the Regional Water Authority based on the State Engineer’s decision cannot be issued until the appeal process has been exhausted or completed. Utton told me he expects the State Engineer to render a decision this summer; La Jicarita will continue to follow this situation as it plays out.
A recent article in the Santa Fe New Mexican indicated that the Regional Water System could also be in trouble. The state is committed to providing $72.5 million to the construction cost; $15 million was set aside in 2014, but this year’s legislature voted against setting aside an additional $9.1 million. The Aamodt stipulates that the funding for the Pojoaque Basin Regional Water System must be appropriated by the September 2017 deadline. A settlement provision also stipulates that if the Regional Water System is not completed by 2024 a final decree will not be issued and the adjudication could be taken back to court.
The other longstanding adjudication in northern New Mexico, the Abeyta, or Taos Pueblo Settlement, is having some problems as well. In a recent unanimous vote at their annual March meeting, the parciantes of the Acequia Madre del Rio Lucero y del Arroyo Seco voted to reject the Aquifer Storage and Recovery wells that are part of the settlement agreement. This project would move water rights from the Llano Community Ditch in Questa to the Acequia Madre in a scheme that calls for diverting the water from the Rio Lucero in the winter, storing it in ASR wells, and then pumping it from the wells during the irrigation season to augment the acequia system. The Acequia Madre parciantes object to the project for several reasons:
- They believe the cost of the ASR wells will bankrupt the acequia due to the electricity, maintenance, permitting, and labor costs that could far exceed their annual budget.
- The water that will be injected into the wells will be treated with chlorine and chemicals to adjust its pH. The parciantes find this unacceptable.
- The proposed pipeline that would divert the acequia water during the winter would compromise the integrity of the historic Rio Lucero ditch that predates 1851. The parciantes believe it is not reasonable maintenance to bring in heavy equipment to reconstruct the acequia, which they believe is protected by the Treaty of Guadalupe Hidalgo and New Mexico Water Statues.
- There is concern among the parciantes that the cone of depression (or exhaustion) created by deep water mining could potentially lower the water table and threaten shallow domestic and Mutual Domestic water wells that the community depends on for household water.
These concerns were laid out in a letter to the OSE, the Bureau of Reclamation (responsible for building the ASR system), and the Interstate Stream Commission, formalizing their decision. The Acequia Madre Commission also stated in the letter that “we do not give authority to anyone to make decisions on behalf of our Acequia regarding the ASR well, pipeline, retention ponds, reservoirs, without discussion and consent from our membership.”
I spoke with Acequia Madre commissioner Chris Pieper about the acequia’s decision to reject the ASR wells. Because the water rights are junior rights that can only be used in the winter, the acequia’s rejection of any reconstruction of the acequia would also preclude a retention pond as that would require that the water be piped from the Rio Lucero to the pond.
As La Jicarita has previously reported, Palemon Martinez is the chairman of the board of the Taos Valley Acequia Association and former secretary of the Acequia Madre del Rio Lucero y del Arroyo Seco (Rebecca Dempsey is the TVAA attorney). Unbeknownst to most of the parciantes on the Acequia Madre, Martinez negotiated this water transfer to the acequia, paid for by the federal government and the state of New Mexico to compensate the ditch for a “taking” by Taos Pueblo in 1935. Martinez contracted with Lawrence Ortega of Questa, as far back as 2005, to transfer 91.592 acre feet per year of water rights from his father Bernabe Ortega’s estate that were severed from the land in the 1960s. The Interstate Stream Commission, which controls the funding, distributed $350,000 to the Acequia Madre in 2008 for the purchase of the water rights. No one outside of the negotiating team knew about this proposed transfer and contract, including parciantes on the Acequia Madre, until 2013 when Martinez filed an application with the OSE to transfer the water. In 2015 the parciantes ousted Martinez from the Acequia Madre Commission.
The Llano Community Ditch and the Cabresto Irrigation District protested the transfer to the Acequia Madre, but in March of 20l6 the protest was settled: the amount of water was reduced from 91.592 to 23. 917 afy and the cost was set at $250,000.
The Acequia Madre commission received an e-mail announcing an upcoming April 27 meeting with the Bureau of Reclamation and the parties to the Abeyta Settlement. The acequia’s letter rejecting the ASR wells, and essentially any other option, will have been received by then and the fallout will be unsettling to a settlement that was signed in 2010 but not yet delivered. Potential fallout for the Acequia Madre would be the loss of the water rights assigned to them as part of the settlement, including the approximately 68 afy of water that remain from the reduced amount allotted from the Llano Community Ditch. La Jicarita will also continue to follow this situation as it unfolds.