Editorial: Adjudications Elicit Endless Litigation

Commentary by KAY MATTHEWS

As a journalist I’ve covered the Aamodt Adjudication since the inception of La Jicarita in 1996 and the Abeyta a few years later. As a parciante and community activist, I’ve been personally involved almost as long. In 1999 I was one of the protestants of the proposed Top of the World water transfer from northern Taos County to Santa Fe County, where eventually the water will be used to meet the terms of the Abeyta Settlement. As a member of the Public Welfare Committee that worked on the Taos Regional Water Plan in the mid 2000s I witnessed the Abeyta Adjudication parties sabotage the Plan’s Public Welfare Statement.

Needless to say, I’ve closely watched the latest developments of the two settlements that will supposedly bring these adjudications to a close. It’s not been pretty. Last year I quoted a mayordomo Pat Beasley (the Taos News) who had this to say about the entire process: “After 51 years of this stuff, I’m like, ‘Let’s just get it over with.’ It’s unfortunate the powers that be have squandered all this time and money, and nothing’s really been accomplished except more rules.”

Except they keep changing the rules. Here are the most recent changes, or contested rules that may result in changes, in both adjudications.

Aadmodt:
1. As it becomes more and more obvious that not enough non-pueblo water users will sign up to the Pojoaque Basin Regional Water System as hoped, the settlement parties are offering the enticement of allowing non-pueblo water users to keep their wells as well as hook up to the water system, assigning a certain percentage of their allotment of 1 afy of water for outside use along with domestic use. Remember, in the settlement’s first iteration, it required mandatory hook-ups to the regional water system until residents rose up and demanded representation at the settlement negotiations to change mandatory to voluntary.

2. In a much more impactful change Santa Fe County is now saying it will wait to transfer the 600 afy it owns from Top of the World (TOW) slated for the regional water system until there is need. In the interim it will lease the water to the current owners of the land from which it was attached, Ed and Trudy Healy, Taos County philanthropists. What if these water rights are never needed for the regional water system? Will they eventually head south of the Otowi Gauge to other parts of the county?

3. The Bureau of Reclamation (BOR) has jettisoned the idea of Aquifer Storage and Recovery (ASR) wells to serve the regional water system because of problems with area geology. Above ground storage facilities will be much more costly than the ASR wells.

4. In a recent Request For Prequalification Services issued by the BOR for Phase I of the regional water system the design calls for a water treatment facility with a design capacity to treat 6.3 million gallons per day, which equals 7,056 afy. Only 4,000 afy, not 7,000 afy, of water rights are allocated for the water system for both Pueblo and non-pueblo water users—and they’re already saying they don’t need the 600 afy of TOW water right now. Why does the design call for this large capacity?

5. Two outstanding lawsuits and a water transfer protest are extant. Three hundred and seventy-five water users have filed suit against the Aamodt Final Decree in the 10th Circuit Court of Appeals; Joe Gutierrez, an Aamodt water rights owner, has filed suit over his acequia’s assigned priority date in the settlement; and Taos County appealed the State Engineer’s denial of its Top of the World water transfer protest to district court.

Abeyta:
1. When I was the chair of the Taos County Public Welfare Committee, we reviewed all water transfers from and within Taos County to assess their impact on the public welfare of our citizens. We reviewed the Top of the World proposed transfer, part of the Aamodt Settlement, and transfers to the new, deep wells near the Rio Grande Gorge, mitigation wells in the valley stream systems, and the Aquifer Storage and Recovery wells in Arroyo Seco, part of the Abeyta Settlement. We questioned the Office of the State Engineer’s (OSE) hydrology model upon which much of the settlements are based. We based our assessments on previous studies done at the move from site at Top of the World, where the transfer is based on the assumption that when the wells are shut down the water in the aquifer will eventually migrate to the Rio Grande, to be taken out at San Ildefonso Pueblo for the Aamodt Settlement. We consulted with various geologists and hydrogeologists about the nature of the aquifers in the Taos Valley where the 1,000-foot wells would be dug, including Paul Baer and Peggy Johnson of New Mexico Tech. Lo and behold, based on a 2016 study by these scientists it’s been shown that the hydrogeology of the valley is much more complex than the OSE model shows. The parties to the Abeyta are now “integrating” these findings into the settlement and reviewing historic pumping data, drawdown, and aquifer recharge.

  1. The parties to the settlement are trying to confirm the mitigation well operation agreements and figure out who’s going to pay for all the wells and their maintenance. Many of the domestic well associations and acequias where the wells will be located object to the wells and question the estimates of their cost.
  2. The settlement parties are reviewing the ASR wells of the Acequia Madre del Rio Lucero y Arroyo Seco at the behest of the acequia. The acequia commission is on record opposing the construction of the wells.
  3. The Bureau of Reclamation, which leads the implementation team, and representatives of the other settlement parties, continue to meet in Santa Fe to avoid the scrutiny of the Taos Valley parciantes.

In an article historian Malcolm Ebright wrote for La Jicarita in 2001 called “Distortions of History, Are We Doomed to Repeat the Past?” he had this to say:

“It is the separation of land and water from a legal and a historical point of view, together with the imposition of priority adjudication — a concept that did not exist historically in New Mexico under Spain and Mexico—that has caused many of the problems we face today. Laws that are not considered fair or historically accurate by the grass roots rural communities of northern New Mexico will be the subject of the endless litigation.”

This is where we are: endless litigation with no way out as our water resources continue to decline due to increased temperatures and aridity. Parciantes and rural water users know this first hand because they live it every day. Policy makers and courts don’t seem to care.

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2 comments

  1. Hi Kay, Good piece. I’ll use some of it tonight in my culture class. We’re just finishing up with Sylvia’s book. Actually, it’s better than I previously mentioned. Perhaps I took more time and time tells more about it though her optimism about “Custom” seems misplaced. I’ve downloaded the Abeyta and have been reading about the money allocated etc (for which there is what accountability). Dave and Petra are going to attend and discuss the Spring Ditch problems etc. next week. I’d love it if you came either tonight or next week: 5:30 to 7:30 pm on Mondays at the Manzanita Market. I’ll buy dinner afterwards or whenever. Plus I’ll review your books. Promise. Best Bill

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