By KAY MATTHEWS
The Aamodt Adjudication of the Pojoaque Valley was first filed in 1966, which considering the small amount of water and the enormous amount of money involved in and of itself reveals the absurdity of this over 50-year process. I’ve been personally involved in the adjudication as both an activist and journalist and can attest to the many more machinations that make the adjudication and subsequent settlement (supposed) even more egregiously insensible. The settlement act, first signed in 2010, is now being reworked to address the fact that requirements in the act are not being met. I’ll try to provide an overview of the current situation, but first let’s take a brief look at how we got to this stunningly complex moment.
In 1998 the County of Santa Fe applied to transfer 588 acre feet per year (afy) of water rights from Top of the World Farm (TOW) in the Sunshine Valley north of Questa. The county and city planned to build an infiltration gallery (outtake) at San Ildefonso Pueblo, above Otwoi Gauge, to take the water and pipe it to the Buckman Well Field, below Otowi, to supplement the city/county water supply. When the norteño acequia community found out about it, nineteen acequias, non-profits, and individuals protested the application to the Office of the State Engineer (OSE), citing abrogation of the de facto prohibition of transferring water rights across Otowi Gauge from the upper basin to the middle basin. Otowi is where the Bureau of Reclamation measures the water flow to meet the requirements of the Rio Grande Compact on deliveries to the middle and lower basins. We (I was one of the protestants) were concerned that this would set a precedent for other municipalities and developers to acquire water rights—particularly acequia rights—in northern New Mexico and transfer them to the lower basins.
We also challenged whether these water rights were ground or surface rights and issues of access to Pueblo lands for the takeout. The last issue, interestingly enough, is still a question that was raised in the Rio Grande Compact Commission 2015 Annual Report (thanks to Dave Neal of NNMProtects for reading through the report), citing that there were issues of access to the gauge on San Ildefonso land. Our protest lingered for years in the OSE as we negotiated with then county contracted attorney John Utton over a possible agreement to drop the protest.
In 2001, things changed. The sitting judge in the Aamodt Adjudication, Edwin Mechem, ruled that that four pueblos of Tesuque, Nambe, Pojoaque, and San Ildefonso were limited to their domestic water use that was established between 1846 (the year the US seized control of the New Mexico territory) and 1924 (the year of the Pueblo Lands Act that sought to resolve disputes over pueblo land and water rights). In a previous court decision in 1985, Mechem had limited the pueblos’ stream water rights to the acreage irrigated between these same two dates. These decisions would have severely limited the pueblos’ water claims.
In the wake of Mechem’s decision, former Senator Pete Domenici stepped into the fray and pushed for the TOW water rights be directed to a regional water delivery system to supply water to both the pueblos and non-pueblo residents of the Pojoaque Valley, negotiated in a settlement rather than in litigation, circumventing Mechem’s ruling. In 2004 negotiations with Utton over our TOW protest, he made the offer that if we would drop our protest, the county would commit to not piping TOW water rights south of Otowi Gauge. The offer also stated that the county would limit the amount of upper Rio Grande Basin water that would be diverted to offset the upper basin Rio Tesuque to not more than 2-afy.
While covering this move to a water delivery system for La Jicarita, I was told repeatedly by valley residents that Domenici was pressured by the pueblos and the city and county of Santa Fe to push for the system so the plumbing would still be in place to eventually send water to Santa Fe. Many, if not most, non-pueblo water users didn’t want to give up their wells to tap into a water system, and told the county at many meetings that I covered for La Jicarita that they wanted a septic system, not a water delivery system, for the valley.
And guess what, a draft agreement to amend the Aamodt Settlement has recently been promulgated among the parties to the adjudication that is putting a pipeline back on the table: sending 1,000 afy of water earmarked for the non-pueblo water users in the valley to a “tee” located at the intersection of Bishop’s Lodge Road and Tesuque Road that the county “may use unused capacity, if any, to supply water within the County outside of the Pojoaque Basin on an interim basis.” This is 1,000 afy of the 1,500 afy set aside for non-pueblo water users in the original agreement that will piped south of Otowi Gauge to Santa Fe at the cost of $4 million. The pueblos retain their original 2,500 afy allocation, 1,100 afy of which was acquired at Top of the World in 2006 by Santa Fe County and sold to the Department of the Interior for the pueblos’ portion of the settlement.
Why, after so many years of insisting that the Aamodt parties needed 4,000 afy of water to implement the settlement—which included denying the protest of the entire TOW water transfer by Taos County—is there now “unused capacity” that may be used by Santa Fe County on an “interim basis?” Because all those folks who never wanted a delivery system aren’t signing up for it (the settlement originally called for a mandated relinquishing of wells but eventually backed off to make it voluntary), and are going through the process of metering their wells to adhere to the reduced amounts stipulated in the settlement.
This draft “Agreement Pursuant to Section 611(g) of Title VI of the Claims Resolution Act of 2010,” also lays out the new costs associated with these changes, assuming the bill introduced by the New Mexico Congressional delegation to obtain additional federal funding for the regional water system passes Congress. The bill was introduced when it became obvious last year that the Bureau of Reclamation, the agency responsible for building the water system, needed a significant amount of more dollars and an extended time frame to complete the system.
So what are these new figures? The BOR has estimated that the estimated final cost of the project is $406 million. That exceeds the amounts described in the Settlement Act and Cost-Sharing agreement by $193 million. The shortfall will be spread among the US, state and county governments: the feds will have to come up with an additional $137 million; the state, increased from $57 million to $100 million total; and the county will be responsible for $34.4 million, with $24 of that “deferred” until Phase 3 is substantially completed ($10 million for the non-deferred portion of the system and $4 million for the Tesuque Road/Bishop’s Lodge pipeline).
In the bill introduced in Congress, Pueblo Construction Costs would strike ‘‘$106,400,000’’ and insert ‘‘$256,400,000’.’ Funding for the Regional Water System would be amended by striking ‘‘$50,000,000’’ and inserting‘‘$200,000,000’’; and (2) by striking ‘‘2024’’ and inserting ‘‘2028’’. 2024 was the original deadline for the system to be built to meet the terms of the settlement.
I called and e-mailed Anjeli Bean, Project Manager II-Aamodt, to ask about the agreement to send 1,000 afy across Otowi gauge to Santa Fe via the Tesuque pipeline: which water rights are going to be sent to Santa Fe; are TOW water rights still being leased to the Healys, who bought the TOW property from the county; and will sending water south across the Otowi Gauge adversely affect the Rio Grande Compact.
In an e-mail response, Bean disagreed with me that the 1,500 afy of water rights slated for the non-pueblo water users has been reduced because of lack of sign-ups to the water delivery system, stating that that amount remains dedicated to the non-pueblo users: 600 afy of TOW rights and the rest from county connection transfers.
The agreement the county signed with the other parties to the settlement reduces the initial buildout of the system from the original 4,000 afy capacity to 2,500 afy until demand in the basin requires expansion to the full buildout (the TOW water rights are still being leased to the Healys).
She states that the Tesuque pipeline is not connected to the county’s current water rights but will “serve future users in the Valley [and] allow for temporary interim use outside the Valley until demand in the Valley requires the County’s full allocation.”
As to my question regarding the transfer of water rights from the upper basin to the middle basin she takes the same position Santa Fe County originally took when it proposed the transfer to the Buckman Well Field in 1998: “The point of diversion (POD) is at the Rio Grande above Otowi gage, so no water rights are being transferred below Otowi. The State Engineer granted a permit, signed the Settlement Agreement, and supported the Settlement Act, all of which support interim uses outside the Valley.
Those of us who protested the original TOW transfer saw it as a maneuver to circumvent the Compact by taking the water out of the Rio Grande above the gauge but then piping it south of the gauge. I suspect many of the folks in the Pojoaque Valley would interpret this latest proposal, to take the water rights above the gauge and send them to Bishop’s Lodge and Santa Fe in the same light.