State Engineer Denies Taos County’s Protest of Top of the World Water Rights

By KAY MATTHEWS

On July 14, when the parties to the Aamodt Adjudication signed the Final Judgment and Decree—the city and county of Santa Fe, the state of New Mexico, the Bureau of the Interior, the pueblos of San Ildefonso, Pojoaque, Nambe, and Tesuque, and the U.S District Judge—they ignored the outstanding protest of the Top of the World water transfer. The New Mexico State Engineer denied Taos County’s protest of the TOW water rights four days dater, on July 18.

Any appeal of that protest will also be ignored when the adjudication’s implementation deadline rolls around on September 15, 2017. According to Santa Fe County attorney John Utton, “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.”

The language in the Settlement Act 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 . . . .” He claims that if Taos County decides to appeal the TOW transfer, this doesn’t qualify as a “condition that materially adversely affects” the decision approving the transfer.

It certainly seems that these actions and claims are an abrogation of the process of a water rights transfer protest. Taos County never stood a chance. One might also question why Santa Fe County is involved in the Aamodt Settlement in the first place, pitting the two counties against each other. The TOW water rights were initially acquired and designated for use by the city and county at the Buckman Well Field, their main water source, below Otowi Gauge. When that elicited an outcry of opposition (Otowi has always functioned as a defacto barrier to norteño water moving south to the cities), and when the judge in the adjudication issued a decision that limited the pueblos water supply, the politicos got involved and the TOW water was redirected to the adjudication parties. In order for that water to reach the pueblo and non-pueblo residents of the Pojoaque Valley it had to be piped, which meant a water delivery system that most of the non-pueblo residents didn’t want.

In the last conversation I had with Taos County Manager Leandro Córdova, he pretty much said that the county does not have the resources to file an appeal of the TOW water transfer protest. Those 300 or more Pojoaque Valley water rights holders who objected to the Aamodt Settlement have been dismissed; they will have to take their case to the 10th Circuit Court of Appeals. In light of the legal machinations that have gotten us this far, no one’s holding their breath that any legal decision will derail this train that has run roughshod over all who have a stake in the equitable management of water in New Mexico.

In a separate but related issue, the lawsuit filed by Northern New Mexicans Protecting Land, Water, and Rights (NNMProtects) just had their lawsuit over access and easement rights on county roads that fall within the exterior boundaries of the four pueblos involved in the Aamodt Settlement—Tesuque, Nambe, Pojoaque, and San Ildefonso—dismissed by the appeals court. Ironically, in 2015 the Santa Fe County Commission passed Resolution 2015-25, which requires that the legal status of the county roads be resolved before the commission appropriates funding for the regional water system. The water system must be completed by 2024 under the terms of the Settlement or the Decree will be null and void. But if anyone’s holding their breath that lack of funding may derail the Settlement, note that NNMProtects attorneys were prevented from attending a closed door meeting between the Santa Fe County Commission and representatives of federal agencies and the pueblos on Thursday, July 13 to discuss the road easement controversy. So was Rep. Carl Trujillo, D-Santa Fe, whose district covers part of northern Santa Fe County.

The Taos News quoted a spokesperson from the Office of the State Engineer yesterday who said that the [Aamodt] final decree and judgment is not connected to and does not impact the decisions rendered by her agency. That, my friends, pretty much sums up the state of water management in our land of enchantment: turn the lawyers loose to do what they will.

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