More “Unsettling” of the Aamodt Settlement

By KAY MATTHEWS

Several recent articles in the Santa Fe New Mexican and the Journal North hailed the long awaited construction of the diversion dam, or collection well, at San Ildefonso Pueblo, diverting Rio Grande and San Juan/Chama water to the Pojoaque Basin Regional Water System to meet the terms of the Aamodt Adjudication Settlement.

Anyone who has previously read La Jicarita is familiar with this paper’s investigative reporting of this 54 year old adjudication’s machinations that rely on paper water rights (Top of the World Farm in Taos County), the political abrogation of judicial rulings (Judge Edwin Mechem), the imposition of a water system the non-pueblo residents don’t want (the Pojoaque Basin Regional Water System), the expenditure of millions of dollars of federal, state, and Santa Fe County funds to lawyers and bureaucrats to adjudicate a singularly small amount of water, and the lack of transparency and representation in settlement negotiations.

In a July 12, 2019 article in La Jicarita I reported on how the terms of the settlement were not being met, due to a lack of funding necessary for the Bureau of Reclamation (BOR) to fully implement the Pojoaque Basin Regional Water System. A draft agreement to amend the Aamodt Settlement was promulgated among the parties (Agreement Pursuant to Section 611(g) of Title VI of the Claims Resolution Act of 2010). The New Mexico congressional delegation introduced a bill to approve the amendment and supplement the water system shortfall (and extend the deadline of implementation of the system from 2024 to 2028). The bill recently passed the Senate, but has yet to pass the House.

The BOR estimated that the 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 U.S., 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 Three, the last phase, is substantially completed.

Despite the local papers’ good spin on the construction of the collection well, the BOR, which oversees the building of the Regional Water System to deliver water to the settlement parties, is currently pursuing “Limited Construction” of the system, essentially the infrastructure necessary to build the collector wells. If the additional funding is approved by Congress, further construction will proceed in three phases, with Phase 3 being the build-out of the distribution lines to residences that have signed onto the system. The agreement reduces the initial build-out of the system from the original 4,000 afy capacity to 2,500 afy until demand in the basin requires expansion to the full amount.

I asked Anjali Bean, Santa Fe Project Manager II-Aamodt, how many people have elected to sign on to the system: to date, 184 have made that election (the majority of basin residents haven’t made a decision one way or the other to sign onto the system or to keep their wells).

An aspect of the agreement that has stirred controversy in the non-pueblo community is that Santa Fe County may used its portion of Phase 3 deterred funding to build a pipeline to send 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 according to Anjali Bean 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.”

Devin Bent, who hosts the Pojoaque and Española Valleys Forum on Facebook, has this to say about the Tesuque pipeline: “1,000 acre feet of water or 40% of the initial 2,500 acre feet will be pumped up Bishop’s Lodge Road to the developers of Santa Fe. Maybe Mr. Last [the Journal North editor who wrote the article about the collector wells] does not think that is a harbinger of things to come. Many of us do. In any event, the system was advertised as serving the needs of the Pojoaque Basin. Instead, from Day One, 40% of the water is being piped out of the Basin. Does anyone think that percentage will go down over time?”

Both Bent and David Neal, a party to the settlement who is a commissioner on the Pojoaque Valley Irrigation District (PVID), also question whether Phase 3 will actually be achieved. Bent believes that by the deadline of 2028 “the only County distribution lines completed will be those that can be laid in the same ditch as the transmission lines. No new pueblo distribution lines will have been built. Essentially, in 2028 you will have a system of transmission lines to deliver water to existing Pueblo distribution systems and to the Santa Fe developers. For the majority of non-Pueblo residents, even those who want to hook up in 2028, it will not be possible to hook up—for the overwhelming majority, there will be no distribution line to hook to.” Neal questions whether the estimated 200 property owners who have indicated they may connect to the system can financially sustain the County’s costs to operate it. Bent points out that almost half of the Pojoaque Basin’s population is left out of the service area and that most of those who do live within the service are expected to keep their wells.  

There is also trouble brewing among the Aamodt parties regarding the distribution of water rights as stipulated under the terms of the settlement in the Nambe-Pojoaque-Tesuque Basin (NPT). During a summer season with no Water Master assigned by the Office of the State Engineer (OSE) to oversee the terms of the settlement, accusations were leveled that one of the parties that receives water from Nambe Dam, Nambe Pueblo, was diverting more than its stipulated share.

The Pojoaque Valley Irrigation District is the entity that is responsible for releasing water from the Nambe Dam, while the Water Master, hired by the OSE, is responsible for ensuring that the terms of the settlement are met: priority calls in times of water shortage; over diversions; illegal diversions; or water waste within the settlement area. There seems to be some confusion as to which entity—the PVID or the OSE—had the authority to resolve the over diversion that occurred this summer.

According to Dave Neal, PVID has a contract to manage and maintain Nambe Dam while the Bureau of Reclamation oversees the allotted amount of water stored in the reservoir. Before the advent of the adjudication, the individual acequias within the NPT Basin, which the Nambe reservoir serves, regulated their own water deliveries, just as other community acequias do, although the PVID “dam tender” often informally stepped in to schedule and oversee the distribution of water. But the PVID assumed that once the Aamodt settlement was negotiated, this would be the job of a water master. The actual duty of the PVID’s dam tender is to release water from the dam upon request, not track the 60 percent non-pueblo and 40 percent pueblo allocation it oversees in the dam: “Our job is to make sure we do not exceed the stored allocation of water in the reservoir as stipulated by the Bureau of Reclamation,” says Neal.

Neal emphasized that it is not the PVID that is assigned to oversee the amount of water released or where it goes. He stated that the “OSE should have stepped in to shut down the illegal diversion.” Neal pointed out that the New Mexico Administrative Code that governs the NPT Basin spells out the duties of the OSE: “The objective of this rule is to provide for the distribution and administration of the available water supply and administrable water rights in the Nambe-Pojoaque-Tesuque Basin (NPT Basin), including the prevention of illegal diversions, waste and over-diversions, and implement the terms and conditions of the settlement and the final decree . . . .”

John Romero of the OSE told me that perhaps some of the confusion was caused by the untimely resignation of the NPT Water Master at the beginning of the Covid pandemic and budget constraints imposed by the Governor that delayed a new hiring process until fiscal year 2021, which just began. The OSE advertised for a new Water Master and just recently hired the District 6 supervisor (water master) from “in house” candidates (meaning current OSE employees). Romero told me that the PVID dam tender also retired, which may have caused frustration in the PVID that without a Water Master the claim of over diversion was not looked into. According to Romero, the OSE could potentially act as a referee in a dispute within the PVID but it is not in its purview to regulate water distribution.

To try to resolve the issue, the PVID initiated several conference calls with representatives from the OSE (the tribal liaison, not Romero), Pojoaque Pueblo, the BOR and others, to request that a Memorandum of Understanding (MOU) be promulgated to authorize the PVID to oversee water distribution within the NPT Basin. According to Neal, the OSE told the PVID it already had this authority, but this was based on rules from 1970 that do not apply to the adjudication.

Another entity within the NPT Basin, the Pojoaque Regional Acequia Association (PVAA), could also help resolve this issue. Formed several years ago with the help of the New Mexico Acequia Association attorney Enrique Romero (who was born and raised in the Pojoaque Basin), the PVAA functions much like other numerous acequia associations in el norte, fostering communication among the member acequias in the NPT Basin to ensure that water is shared equitably among the acequias in the association. Neal, formerly the treasurer of the PVAA, has been working to coordinate the work of the acequia association and that of the PVID to formulate an agreement whereby the latter would have the authority to regulate water distribution.

I also spoke with Kyle Harwood, a water attorney who’s been hired by the PVID to review the existing contracts between the PVID, the pueblos, and the acequias, to make sure any agreement with the OSE to oversee water distribution on the river is in compliance with those extant agreements. In the meantime, he agrees with Dave Neal that the situation is a “conundrum” but is hopeful that with further consultation with the OSE and the PVAA the PVID can effectively take on the duties of water distribution. Harwood speculated that perhaps the OSE sees its role in the Aamodt like that of the Middle Rio Grande Conservancy District, where a ditch rider on the canals, once the water is diverted from the Rio Grande, has the duty to set irrigation schedules, oversee distribution, and has the authority to deny an abuser the use of water (similar to how an commissioners enforce regulations on individual acequias).

I called John Romero one last time, to communicate Dave Neal’s request that the OSE meet with the PVID to formalize an agreement that authorizes the PVID to schedule and oversee the distribution of water within the NPT Basin, as stipulated in the Aamodt Settlement, and to enforce compliance by all pueblo and non-pueblo parties. Romero responded that Neal should initiate a meeting with State Engineer John D’Antonio as soon as possible to reconvene those who were on the conference calls last spring to move forward with an agreement to contract with the PVID for oversight. Attorney Harwood then spoke with State Engineer John D’Antonio who agreed to follow up with Harwood about the PVID’s role.

The take away from all of this seems to be that once again, the bureaucrats and lawyers who worked on the Aamodt failed to adequately address a number of issues that arose to “unsettle” the settlement of this long and complex adjudication: the uproar over the initial demand that non-pueblo water rights owners give up their wells (which then became voluntary); the more than 375 appellants to the final decree; a protest and lawsuit filed by Taos County against the transfer of Top of the World water; and miscalculations of the cost of the Regional Water System. This latest issue of oversight reveals their failure to work through how the settlement would be administered on the ground, i.e., among the acequias and parciantes who need to know that the adjudicated water will flow to their fields and farms according to a fair and equitable distribution system.

 

 

 

 

 

 

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