Water Issue Updates
Taos Regional Water Plan
By Bill Whaley
January 18, 2008
Efforts to create a Taos Regional Water Plan (TRWP)
began years ago, when federal court Judge Bratton in El Paso, Texas,
according to Palemon Martinez, former member of the Interstate Stream
Commission (ISC) and current President of the Taos Valley Acequia
Association’s (TVAA), told New Mexico that it needed a regional water
plan or it would lose its water. In other words, the state needed a
water plan based on evidence to create an argument and prove to the
court why the state should retain water flowing down the Rio Grande.
The plan needs to include reasons, examples, or arguments that are
defensible in court. Consequently, the ISC provided money and
consultants for 16 state regions to develop water plans. Since then, 15
regions have provided plans to the ISC approved by local consensus and
accepted by the ISC. But the ISC has yet to approve TRWP due to a lack
of consensus among local water users.
The current water planning process began in the early nineties in Taos
but lay fallow for several years. After a new consultant and project
manager, the D.B. Stevens firm, was hired and funded by the state about
four years ago, the regional water planning process gained momentum.
The county was named fiscal agent for a grant. In addition to state
funds funneled through the county, hundreds of thousands of dollars
have been spent on consultants and attorneys by local governmental
entities. The Taos Pueblo Water Settlement (aka Abeyta Agreement) is a
separate agreement, but the signatories fall under the geographical
aegis of the county and TRWP.
Much of the public outreach and work on local issues has been
accomplished by a volunteer steering team composed of community
activists from all water stakeholders in the county. D. B. Stevens has
documented the response from residents at public meetings throughout
the county, and has also provided technical assistance, facilitation,
and public relation functions for the team. An initial draft of the
plan was completed on Jan. 22, 2007. ISC Director Estevan Lopez
extended the comment period due to requests from so-called
stakeholders, including the Pueblo-Abeyta group, who were settlement
The Pueblo-Abeyta Settlement, a forty-year lawsuit focused on Taos
Valley adjudication issues, was signed off on May 30, 2006 in a public
ceremony with Gov. Richardson and other luminaries in attendance. The
Pueblo-Abeyta settlement agreement involves the Taos Valley area,
roughly bound by Arroyo Hondo on the north, Ranchos and Llano Quemado
on the south, the Rio Grande on the West, and the mountains on the
east. It involves Taos Pueblo, Town of Taos, TVAA, which represents
only 55 of 200 acequias in the county, El Prado Water and Sanitation,
and about twelve Mutual Domestic Water Associations.
At a November 28, 2007 meeting, the Interstate Stream Commission (ISC)
rejected the TRWP due to opposition from the itinerant professional
representatives from the Pueblo-Abeyta settlement, in addition to the
Villages of Questa, Red River, Taos Ski Valley, and El Valle de Los
Ranchos, and Chevron Mining. There was a lack of “consensus” or
agreement pertaining to the Public Welfare and Conservation
Implementation portions of the plan.
The Taos County Commission voted unanimously on Tuesday, Dec. 18, 2007,
to table adoption of an ordinance and resolution establishing “a Taos
advisory and informational committee on Public Welfare and Conservation
of water” due to opposition from the same groups who protested at the
ISC Nov. 28 hearing.
On January 22, 2008, the Taos County Commission will try again to pass
an ordinance and resolution aimed at forming a committee to educate the
community about water rights transfers and appropriations, to protect
the public welfare while implementing the idea of conservation.
Criteria for the Public Welfare and Conservation sections of the TRWP
that were developed by the steering committee include: cultural
protection, agrarian character, ecological health, economic
development, recreational tourism, public information, water supply
management, conservation, conjunctive management (relation between
surface and ground water), and minimizing water contamination.
The lack of a regional water plan, according to Estevan Lopez,
Interstate Stream Commission Director, and Trudy Healy, treasurer of
the state’s Water Trust Board, means funding for water projects from
within the TRWP boundaries could be in jeopardy at the state
legislature. The 30-day 2008 legislature begins on Jan. 15.
Who’s Moving Water Where?
TRWP Steering committee member Manuel Rudy Pacheco has
been working on water matters since the ’30s and frequently alludes to
how Taos County lost a potential 39,000 acre feet of San Juan-Chama
water rights due to bad information during the Indian Camp dam
imbroglio in the late ’60s and early ’70s. About 12,000 acre feet of
water could have been stored behind the dam proposed for the Pot Creek
area. But opposition developed. Pacheco says the water rights could
have been saved if the residents had better information and had
understood the issues.
Top of the World Ranch water rights in northern Taos County, about
1,700 acre feet, were sold by Tom Worrell to Santa Fe in the late ’90s
and the early years of this century. Yet few public officials, if any,
were aware of the sale at the time. The news became public well after
the fact. El Prado Water and Sewer board member, John Painter, says he
urged Town of Taos officials—Fast Fred and Slick Gus—to purchase the
water rights. But they ignored Painter’s advice and lost an opportunity
to buy cheap, save money, and hold on to Taos County water rights.
Currently, Questa lacks about 2,000 acre-feet of legally appropriated
water rights. The Village is leasing those water rights from Santa Fe
to meet the Office of State Engineer (OSE) legal water rights mandates
referred to above. El Prado Water and Sanitation also lacks about 600
acre-feet of water rights to satisfy the OSE. The board recently voted
to purchase the Gallagher Ranch and its 250 acre-feet of water rights
in Sunshine Valley northwest of Questa.
In the early ‘90s, according to reports, the Alfred Keller-owned ranch,
Cerros de San Cristóbal, which is managed by El Prado’s John
Painter, purchased some 700 acre-feet of water rights from the Sunshine
Valley area for private use. Apparently, the rights were transferred
across the Rio Grande, to a location northwest of Highway 64.
More recently, Dawn Kohorst, representing 100-plus members of the West
Rim Mutual Domestic Water Association, who live in the dry sagebrush
mesa west of the Gorge, received a state grant to purchase some 26
acre-feet of water rights from the Klauer or Rio Grande Springs just
south of Taos Junction. The West Rimmers have drilled a well and
erected a water storage tank located just west of the Rio Grande Bridge
at the beginning of the West Rim Road.
But Alfred Keller, owner of the Cerros de San Cristóbal Ranch,
John Painter, his manager, and attorney Jim Brockmann, who also
represents El Prado Water and Sanitation, are the lead protestants
against the West Rimmer’s proposed water rights transfer. If the
Painter-Brockmann et al protest is successful, then hundreds of
sojourners on the West Mesa will continue to haul water an extra 20
miles. The Brockmann law firm has also filed a lawsuit on behalf of
Richard Cook, the well-known gravel miner and developer in Rio Arriba
County, in an attempt to overturn a 2003 acequia law and transfer water
rights from a Rio Arriba ditch to a subdivision—in a decision that was
opposed by the parciantes. Ironically, Brockmann and Painter appear to
oppose the public welfare of the West Rimmers while supporting their
own private welfare even as they protest against the public welfare
section of the TRWP, which might infringe on El Prado’s public-private
welfare. If you think this sounds like a merry-go-round of opportunism,
Conservationist Ron Gardiner has pointed out that the
forests and meadows, riparian areas along rivers, streams, and
acequias, underground aquifers, and surface drainage areas create the
watershed, which acts like a giant sponge. The sponge is recharged and
maintained by the natural flow of water. If the flow of water is
reduced, the sponge dries up and reduces the amount of water available
to the Rio Grande River watershed in general. Consequently, the
county’s local water supply and the state as a whole suffers—all the
way down the river to El Paso.
Regarding the TRWP, all representatives of the various local entities
agree that the county community doesn’t want to see water-rights
transfers and appropriations “go south” of the county line. But there
is substantial disagreement on how the transfer of water rights should
be monitored within the county itself. Basically, the opposition to the
TRWP, regardless of the way the argument is phrased, is against
oversight and public monitoring, according to activists on the steering
committee of the TRWP. The local water brokers and their attorneys
don’t want the public to know how they are transferring water rights
within Taos County from one sub-water shed to another.
Ironically, at the Nov. 28, 2007 ISC meeting, State Engineer John
D’Antonio said, “Ninety-seven percent of applications for transferring
water rights are protested.” Regarding the TRWP, D’Antonio said, “My
process is not going to change.” So, despite what the opposition says,
the OSE will remain largely unaffected by the TRWP.
Furthermore, as Simeon Herskovits, an unpaid attorney and member of the
TRWP steering committee, has repeatedly said, the TRWP, including the
Public Welfare Statement and Conservation Implementation sections, are
“advisory” and do not have the force of law. The opposition is
currently already protected by a variety of constitutional laws,
regulations, etc. The county’s proposed education committee does not
even have the authority of a planning commission. Basically, the
commissioners and steering committee members say that legal notices
posted in The Taos News, Santa Fe New Mexican, and Albuquerque Journal
do not tell the whole story or adequately inform the public about the
ramifications of potential water-rights transfers, so Taos needs a
county education program.
The opposition, in general, says the TRWP duplicates and conflicts with
existing laws, creates a second layer of bureaucracy, and generally
interferes with current practices. The itinerant professionals also say
they haven’t had time to consider all the elements of the plan and
reach a consensus. The County Commissioners tabled the motion until
Jan. 22, 2008, and urged the parties, as did the ISC, to try and reach
a consensus. But a “consensus” on anything in Taos is easily said and
While the TRWP is the result of work by volunteers and
a single paid consultant, the current opposition to the TRWP is
composed largely of attorneys who represent every legal entity but the
county; at least one hydrologist, who also represents all of the above;
and two prominent politicos from El Prado Water and Sanitation
District, John Painter and Telesfor Gonzales. At the Dec. 18, 2007,
Taos County Commission meeting, Tele mentioned the challenges of trying
to serve as head honcho of El Prado Water and Sanitation, while also
being a parciante of various ditches. But he said he deplored the
possible expense and layer of bureaucratic red tape the TRWP might
cause for El Prado.
Several steering committee members say the itinerant professionals
involved—like the Town’s attorney-manager Tomás
Benavídez, attorney Jim Brockmann of El Prado, geo-hydrologist
Jay Lazarus, who has worked on water plans for Questa, Red River, Taos
Ski Valley, and the Town of Taos—have not negotiated in good faith, but
are intent on stalling the process.
At a meeting with the Town on Nov. 21, 2007, TRWP steering committee
member Rudy Manuel Pacheco compared Tomás Benavídez
unfavorably with his father, “who was honest.” (The elder
Benavídez, RIP, was a former state senator from the Albuquerque
area.) Pacheco suggested we “all tell the truth” and “keep out the
hidden agendas.” Benavídez’s mouth turned down, his bottom lip
quivered, and the manager looked like he was going to cry. Last year,
Councilor Struck voted to give Benavídez a $10,000 raise for his
work on the Pueblo-Abeyta settlement agreement. Some participants in
the negotiations said the manager, then the Town attorney, rarely
attended the meetings. According to Horse Fly sources, El Prado carried
the water for the Town. Horse Fly attended several TRWP meetings
wherein Benavídez either left early, due to luncheon engagements
with Applebee’s execs, or appeared unprepared, with pen but without
paperwork. He seemed to mouth the messages prepared by Lazarus, the
busy little hydrologist, or Brockmann, the éminence grise, who
appeared to orchestrate the dialogue.
It’s no exaggeration to say that Brockmann appears to do the thinking,
arguing, and organizing, while El Prado’s John Painter hovers like a
mother hen in the background, fomenting the opposition and quietly
organizing a succession of coups against the TRWP. Painter mentioned to
Horse Fly in passing that he and Brockmann were considered the Darth
Vader representatives of the opposition. In a gesture of recognition,
prior to the Dec. 18, 2007, Taos County Commission meeting, Horse Fly
removed himself from a pow-wow outside the front doors, saying that
Darth Vader and his foot soldiers should meet in “executive session.”
At the county’s Dec. 18, 2007, meeting, Dawn Kohorst of the West
Rimmers said the protests by Jim Brockmann indicated that they
(Painter, Brockmann) were “water manipulators with hidden agendas. We
tried. They don’t do anything. It’s not good faith. It’s bad faith
negotiations. They are taking away our basic fundamental rights. I need
Taos County Commission to help.” Kohorst’s partner in the West Rim
project, Rusty Rhodes, said about the Painter-Brockmann cabal that “we
got hooked and crooked” and “it’s gross negligence, racketeering, and
anti-trust.” Kohorst later told the pesky insect that the
Painter-Brockmann team is trying to stop the transfer of water rights
by causing West Rimmers to incur huge attorney fees.
The real beneficiaries of the Taos Pueblo-Abeyta water settlement and
the work put in by volunteers for the TRWP are attorneys and
consultants. The professionals involved, in addition to those mentioned
above—Benavídez, Brockmann, Lazarus, and D.B. Stevens—are Bruce
Kelly of Taos Ski Valley, Sarah Backus of El Valle de Los Ranchos, Mary
Humphrey of MDWA fame, Taos Pueblo’s and Chevron Mining’s mysterious
legal eagles, as well as the Marcus Rael Law firm of the Village of
Questa, and Fred Waltz, Palemon Martinez’s cohort at TVAA. While some
of the press has sainted Fred and Palemon for representing parciantes,
TVAA has left 150 members of the other acequias, not in Taos Valley, to
fend for themselves.
As one of the attorneys, maybe it was Mary Humphrey (MDWA), mentioned,
there’s plenty of water but everyone needs properly adjudicated and
legally documented water rights. The Pueblo-Abeyta settlement took 17
years of negotiation to reach consensus. (It has yet to be funded or
judicially decided upon by the courts.) The Taos Pueblo deal with all
the signatories mentioned is being protested, according to our sources
like every other recent water transfer, including the Top of the World
In turn, the TRWP is being protested, but by attorneys, whose arguments
amount to a catalogue of legalisms, fatuities, bad faith arguments,
logical fallacies (straw man, red herring, slippery slope), and the use
of the grammatical subjunctive: “If.” The conflicts of interest among
the Pueblo-Abeyta signatories and their legal representation are
legendary. The sentimentalists like to say that, according to custom,
“water is shared.” That sentiment holds when there is a plentiful
supply. But, in reality, when there is a shortage, water, unlike
whisky, which is made for drinking, is made for fighting and sending
the sons and daughters of itinerant professionals through college.
Town of Taos Acequia Upset
Attorney Fred Waltz has filed an appeal to the Town of
Taos Council on behalf of three acequias (the Sánchez, Lovato,
and Molino Ditches) in the matter of the P&Zers’ approval of the
Singing Plumber’s so-called Autumn Acres (Valverde Commons) project.
Among other protestations, the parciantes don’t want developers to
relocate the Malaria Ditch. As the water wars heat up, more and more
local parciantes, like the Spring Ditch members, are speaking up about
being encroached on by urbanization. Just as the TRWP will be back on
the county commissioner’s table January 22, so will the Town’s careless
treatment of parciantes be an issue in the Town Council election.
Senator Carlos Cisneros’s office has been in contact with NMED, Army
Corps of Engineers, and the OSE on behalf of the Spring Ditch,
according to a letter obtained by Horse Fly. Petitions are making the
rounds in a kind of “Save our Acequias” talkback to the Town.
Spring Ditch Update
Letter from Senator Carlos Cisneros:
Nov. 28, 2007
Dear Mr. Rael,
“We are awaiting a formal reply from Linda Gordon, Supervisor of the
Division (Office of the State Engineer). According to a briefing
received regarding the inspection, it was found that the contractor did
cover up the acequia/spring and built a wall, which diverts the water
flow to an arroyo. They will be requiring actual coordinates of the
spring/acequia so this may be brought to the attention of the Legal
Division of the State Engineer’s Office for possible further action
against the City of Taos for permitting the issuance of the permit.”
Letter to Amigos Bravos
Dec. 27, 2007
Brian Shields, Executive Director
Dear Mr. Shields,
Amigos Bravos has had a strong reputation for defending our streams and
rivers from various polluters in the area. Recently, during our
struggle to save the Spring Ditch Acequia, I became familiar with
Amigos Bravos’ mission statement and I also found out who served as
members of the Board.
I was pleasantly surprised to find out one of the members of the Board
was Mr. Roberto Vigil of Questa. I have known Mr. Roberto Vigil for a
long period of time. I know that he is an individual with strong
convictions and a deep-rooted passion for justice in many areas, not
only on issues which affect our environment.
On the other hand, I was shocked to find that your Board President, Ms.
Mary Humphrey, is the same Mary Humphrey that is representing a
developer, Mr. Cody West, against one of the oldest historical ditches
in Taos, the Spring Ditch Acequia.
Ms. Humphrey’s decision to represent Mr. Cody West, Group 3, against a
local acequia does not reflect well on the Amigos Bravos organization.
Mr. West’s development is being erected over a wetland and directly
over a spring that delivers water to our Spring Ditch Acequia. This
activity goes totally against the mission statement and the very
foundation which Amigos Bravos was built upon. Ms. Humphrey’s
activities were hypocritical in nature and in conflict with the core
principles of the organization which she chairs. As a result of Ms.
Humphrey’s activities, the developer was able to obtain a permit
allowing the development to proceed, where a central issue was the
development’s affect on the Spring Ditch.
Some of the issues raised in connection with the development over the
Spring Ditch were: the excess runoff from roofs and parking lots which
Mr. West is proposing to direct into the acequia and eventually into
the Rio Fernando; the decrease in natural infiltration and seepage in
the area of the development which will contribute to the reduced
recharge of the underground spring.
In recent e-mails from Amigos Bravos, the public is urged to contact
our congressional delegation to co-sponsor the Clean Water Restoration
Act. My immediate response to your solicitations would be for Amigos
Bravos to begin by focusing on the immediate threat that is posed by
their Board President Ms. Mary Humphrey.
It is bad enough that our acequias are under assault from many
entities, but to be assaulted by unscrupulous developers represented by
the president of Amigos Bravos is disheartening, to say the least.
David E. Rael
Mayordomo, Spring Ditch Acequia.
REMINDERS FOR PARCIANTES
Statutory Chapters in New Mexico Statutes, Annotated 1978
73-2-4. [Preference right for irrigation; obstruction.]
No inhabitant of this state shall have the right to construct any
building of the impediment of the irrigation of lands or fields, such
as mills or any other property that may obstruct the course of the
water; as the irrigation of the fields should be preferable to all
73-2-6. Ancient ditches protected. The course of
ditches or acequias established prior to July 20, 1851, shall not be
73-2-64. Interference with ditch; illegal water use;
penalty; failure to prosecute; injunctive relief. A. A person shall
not, contrary to the order of the mayordomo or commission, cut, break,
stop up or otherwise interfere with any community ditch or dam in this
state, or any contra or lateral acequia thereof, or take or use water
from the same contrary to such orders. A person who violates a
provision of this section is guilty of a misdemeanor, and, on complaint
made before the nearest magistrate court, a warrant may issue for his
arrest, as in case of any other offense against the state.
73-2-55.1. Water banking; acequias and community ditches.
An acequia or community ditch may establish a water bank for the
purpose of temporarily reallocating water without change of purpose of
use or point of diversion to augment the water supplies available for
the places of use served by the acequia or community ditch. The acequia
or community ditch water bank may make temporary transfers of place of
use without formal proceedings before the state engineer, and water
rights placed in the acequia or community ditch water bank shall not be
subject to loss for non-use during the period the rights are placed in
the water bank. An acequia or community ditch water bank established
pursuant to this section is not subject to recognition or approval by
the interstate stream commission or the state engineer.
73-2-21. Commissioners' powers and duties; mayordomo's
duties. E. Pursuant to the rules or bylaws duly adopted by its
members, an acequia or community ditch may require that a change in
point of diversion or place or purpose of use of a water right served
by the acequia or community ditch, or a change in a water right so that
it is moved into and then served by the acequia or community ditch,
shall be subject to approval by the commissioners of the acequia or
community ditch. The change may be denied only if the commissioners
determine that it would be detrimental to the acequia or community
ditch or its members. The commissioners shall render a written decision
explaining the reasons for the decision.