By KAY MATTHEWS
I want to thank all the new Rio Embudo Watershed subscribers to La Jicarita who saw the posting on the Dixon Town Crier reminding everyone that the journal is still online. And to welcome you to La Jicarita, I’d like to tell a story that involves many of your friends and neighbors and also reminds everyone that the deadline for submitting comments to the Bureau of Reclamation (BOR) on the Abeyta Adjudication (Taos Pueblo) Settlement NEPA Public Scoping period is Wednesday, November 20.
The story begins in 1997 when some of us found out that Santa Fe County had bought Top of the World Farms (TOW), in Sunshine Valley near the Colorado border, and planned to transfer those water rights to Santa Fe. The water would be diverted from the Rio Grande at San Ildefonso Pueblo, just north of Otowi Gage, and piped south to the Buckman Well Field, Santa Fe’s main water source. While these water rights were not acequia water rights—TOW Farms produced many diverse crops in the 1950s and 60s with well water—they represented the breach of a de facto barrier to the transfer of water from northern New Mexico to the middle or lower basins of the Rio Grande. This would not only affect the terms of the Rio Grande Compact, which governs Rio Grande water from Colorado to Texas and Mexico, it could set a precedent for other municipalities and developers to acquire water el norte rights .
Rio Embudo parciantes and acequia associations came together (19 groups and individuals in total), and with the help of the New Mexico Acequia Association, David Benavides at New Mexico Legal Aid, and two pro-bono lawyers, Peter White and Doug Wolf of the New Mexico Environmental Law Center, protested before the Office of the State Engineer (OSE) the transfer of 600 acre feet per year (afy) of water.
The rationale for this transfer rested on the supposition that if the TOW irrigation wells were retired, the aquifer water would flow to the Rio Grande and down to San Ildefonso, where it would be taken out of the river via an infiltration system. The protestants (disclosure: I was a protestant) argued that the transfer would be another straw in the surface flow of the Rio Grande and that water rights, particularly agricultural rights, should remain in their area of origin.
I have a folder about four inches thick that contains all the documents pertaining to the TOW protest that never ended—literally. Before the legal team could even get to the substantive issues in the protest, “threshold issues” such as contested ownership of the water rights being sold dragged the hearing process into the 2000s, and the Aamodt Adjudication of the Pojoaque Valley subsumed the TOW protest. When the sitting judge in that adjudication issued a ruling that severely limited the Pojoaque, San Ildefonso, Tesuque, and Nambe pueblos’ water rights, the powers that be (primarily former Senator Pete Domenici) decided that the TOW water rights should be used for a Pojoaque Valley Regional Water System as part of a negotiated settlement of the adjudication. Non-pueblo water rights owners in the Pojoaque Valley would have to give up their wells and hook up to the delivery system.
There was enormous opposition to this proposal—most non-pueblo residents did not want to give up their wells—and a compromise was forged that allowed voluntary rather than mandatory hook up to the system. In 2006 Santa Fe County bought an additional 1,100 afy of water rights at TOW to complete the needed water rights for the delivery system. Our protest of the TOW transfer sat in limbo until 2015 when the county applied to transfer the entire 1,700 afy of TOW water to the Aamodt Settlement.
This would be a good time to ask why in the world water rights from northern Taos County ended up in the Pojoaque Valley when another adjudication in the Taos Valley was also looking for water rights to meet its needs. The settlement of the Abeyta, or Taos Pueblo Water Adjudication, which I mentioned in the opening paragraph, is another hotly contested agreement. This settlement assures Taos Pueblo of rights to its historically irrigated land along with development rights, while setting up a complex system of deep supply and mitigation wells to offset future development in the Taos Valley—a system that is opposed by many in the acequia community. In the mid 2000s, attorneys for the Aamodt Adjudication tried to exchange its TOW water rights for Taos Pueblo’s San Juan/Chama water rights in the Abeyta Adjudication (San Juan/Chama project water is piped from tributaries of the San Juan River under the Continental Divide into the Rio Chama), but Taos Pueblo turned them down. These are water rights that the pueblo will lease, as they are not accessible from the Taos Valley.
This would also be a good time to explain just exactly what an adjudication involves and why they have become so complicated. Briefly, adjudication is the process whereby the Office of the State Engineer determines the extent, ownership, and priority (when the right was first put to beneficial use) of water rights in a specific geographic area of the state. It is similar to a quiet title suit that establishes ownership of property. First, the OSE conducts a hydrographic survey to determine ownership, purpose, priority, and place of use, and then files a lawsuit stating the quantity and purpose of each water right, although all the water rights owners in the specific adjudication are joined in the lawsuit. The OSE issues an order of judgment to each water right owner, who can accept or reject the offer. These can be settled through further investigation or court hearings (the objectors usually lose), and once they are resolved a final decree is filed.
What has made both the Aamodt and the Abeyta adjudications so complicated is that each involves Native Americans, who come under the jurisdiction of the federal government, while adjudications are a state process. The McCarran Act of 1952 allows tribes and pueblos to conduct adjudications in state court. Because so many parties, with different priority dates, are involved in these adjudications they usually end up in settlement negotiations (encouraged by the OSE) that are held behind closed doors. In both the Aamodt and Abeyta settlement negotiations, parciantes and domestic water rights owners have complained they were not well represented in the process and after almost 60 years—the length of the Aamodt—and 50 years—the length of the Abeyta—many still believe they have been ill served.
The very nature of an adjudication sets up an adversarial relationship between parties because of the concept of priority administration—first in time, first in line in use of the water—and implies that water is a property right instead of a shared resource, governed by the practice of repartimiento in times of drought. Traditionally, the people of the Rio Embudo Valley and northern New Mexico have created their own rules to manage their shared resources, without the interference of the state or marketplace. I’ve written a book about this concept of shared water: ¡No Se Vende! Water as a Right of the Commons.
Santa Fe County didn’t apply to transfer the TOW water rights to the Pojoaque Valley for the Aamodt Settlement water delivery system until 2015. The application was actually a joint one with the Bureau of Indian Affairs, which had purchased 1,141 afy of water rights from the county on behalf of the four pueblos, while the remaining 611 afy of rights were designated for the non-pueblo water users. This time, Taos County protested the transfer, arguing it was not in the public welfare of the citizens of Taos County. Public welfare is one of the three criteria upon which a water transfer protest can be based: the other two being the transfer constitutes impairment of someone else’s water right or is contrary to conservation. Actually winning a case based on public welfare is an uphill battle: there has been no precedent established under that criteria and the OSE is loathe to open what it considers a Pandora’s box about what exactly constitutes the public welfare. To define what the public welfare is when it comes to the movement of water would demand a broader scrutiny of transactions that are seen only through an economic lens, or what is the “highest and best use” of the water.
The New Mexico State Engineer denied the Taos County TOW protest in 2017. The final decree of the Aamodt Settlement was appealed by 375 water rights owners in 2017 but the apply was denied. The Bureau of Reclamation is currently building the water supply system in the Pojoaque Valley for a whopping $406 million, exceeding the amount stipulated in the Settlement Act by $193 million. The New Mexico congressional delegation has a bill pending approval seeking the federally needed additional funds. An amendment to the settlement allows for a pipeline to send 1,000 afy of water designated for the non-pueblo water users to Santa Fe on an “interim basis.”
In the Abeyta Settlement, the BOR is in the NEPA Scoping Period, accepting public comment on the proposed supply and mitigation wells. Many see this public comment period bereft of much meaning, as the terms of the settlement, the implementation of deep aquifer wells that support future growth and development that they believe are unsustainable, are “non negotiable,” at least according to the BOR. We’ll see what happens as certain parties to the settlement continue to object to those terms.
The Rio Embudo Watershed has not been adjudicated. I doubt it will even start in my lifetime and am quite sure it won’t finish. It will include Picuris Pueblo, of course, which at the current moment is pursuing a case of water rights that were transferred across basin to the Mora Valley in the 1800s . It’s going to be complicated. So maintain the acequias, put the water to beneficial use, share the water in this time of drought and climate crisis, and pay attention.