By KAY MATTHEWS
The Taos County Commission is still in the fight to keep county water resources in their area of origin. In executive session on August 1st all the commissioners except Tom Blankenhorn voted to file an appeal in district court of the State Engineer’s rejection (on July 18) of their protest of the Top of the World (TOW) water transfer to Santa Fe County. Commissioner Candyce O’Donnell told La Jicarita, “I support our constituents in wanting to keep water rights in our county.”
These 1,752 acre feet of groundwater rights in northern Taos County are slated to be moved to the regional water system in the Pojoaque Valley as part of the settlement agreement to the longstanding (51 years in litigation) Aamodt Adjudication. The contract attorneys who represented the county in the protest before the Office of the State Engineer (OSE) will file a notice of appeal and the county will issue a Request for Proposal (RFP) for an attorney to handle the appeal.
Santa Fe County first purchased Top of the World water rights in 1998 to supplement water supply in the city and county (the Buckman Well Fields). Nineteen individuals and acequias protested the application to transfer these rights (the move to area was San Ildefonso Pueblo), concerned that it would open the door to movement of agricultural water rights from el norte, the upper Rio Grande basin, to urban areas in the middle basin, separated by the Otwoi Gauge, which had long functioned as a defacto barrier to the movement of water between these basins. Santa Fe County purchased additional TOW water rights in 2006 and changed the destination point of the water to the Pojoaque Valley, above the Otowi Gauge, as part of the Aamodt Adjudication Settlement between the pueblos of Pojoaque, Tesuque, Nambe, and San Ildefonso and the non-pueblo water rights users in the valley. Taos County protested the transfer of this water in 2015. (The original protest was dismissed when Santa Fe County and the Bureau of the Interior, which bought the second tier of TOW water rights from the county as the agent for the pueblos, filed a new application to transfer the entire 1,752 afy of water rights).
The Aamodt Adjudication Settlement Act that was signed in 2010 stipulates that in order to meet the terms of the settlement the water rights designated for the Pojoaque Valley—water from Top of the Word, the San Juan/Chama diverson project, and Nambe Pueblo—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 . . . .” On July 14, the sitting judge in the Aamodt Adjudication signed the Aamodt Final Decree and Judgment; it wasn’t until July 18, four days later, that the State Engineer denied Taos County’s protest of the TOW transfer.
As I questioned in my previous La Jicarita article, how could a Final Decree be signed, in light of these requirements, when the State Engineer had not yet made a decision on Taos County’s protest of the TOW water rights necessary for implementing the adjudication? I asked Santa Fe County attorney John Utton, who signed the Final Decree for the county: he had no response and told me to call Arianne Singer, the OSE state attorney who signed the Final Decree. She never called me back.
In talking with several other attorneys who have followed this adjudication settlement, however, it appears that the attorneys for the state and county are treating the Final Decree and the permitting of the TOW water rights as individual components of Aamodt Adjudication Settlement Act, meaning that if both conditions—as well as other conditions stipulated in the Act, such as funding—are met by the September 15, 2017 deadline for completion, the settlement will then be a done deal.
When I heard that Taos County is appealing the State Engineer’s rejection of its appeal, I decided to again call the legal division of the OSE to ask if the appeal could derail the settlement if it’s not resolved by the September deadline. After promising to have someone return my call, no one did. But in a previous conversation with Santa Fe County attorney John Utton, he claimed that if Taos County decides to appeal the TOW transfer, it wouldn’t qualify as a “condition that materially adversely affects” the decision approving the transfer.
These interpretations of the settlement act are highly disturbing and essentially make a mockery of the judicial system. What will be the weight of a court decision if there’s no wet water to send through the pipes of the regional water system? Again, this transfer, as so many prove to be, is paper water, fulfilling a drive to move water that is market based, in abrogation of the very concept of the doctrine of prior appropriation.
What is equally disturbing is the abrogation of the duty regional water plans were assigned by the State Water Plan to define and implement public welfare criteria for their regions. The concept of public welfare is one of the criteria the State Engineer uses to determine if a water transfer should be approved: is the movement of water detrimental to the interests of those who are protesting the transfer. Taos County implemented an ordinance, based on the work of the Taos Regional Water Plan, that both defined public welfare and established a committee of citizens, the Public Welfare Advisory Committee, to review all transfers within and from Taos County and recommend to the County Commission whether such a transfer should be protested. That committee recommended that the Top of the World water transfer be protested.
The directive of the State Water Plan emphasized that local communities are in a better position to determine what constitutes the public welfare of its community, not the State Engineer. In the late 1990s, former state engineer Eluid Martinez denied the infamous application to transfer water to the Las Sierras development in Taos County. This is part of his response: “Whether a given area is to be preserved for traditional uses, such as agriculture, or converted to new uses such as subdivisions and commercial enterprises is more appropriately decided by local governmental entities charged with land zoning and development activities.”