Water Issue Updates
Taos Regional Water Plan

Acequias and Assorted Claims

Horse Fly
January 18, 2008

By Bill Whaley


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 signatories.

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, you’re right.

The Issues

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 rarely achieved.

The Players

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 water rights.

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:
(Excerpt)

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
(Excerpt)

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.

Sincerely,
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 others.

73-2-6. Ancient ditches protected. The course of ditches or acequias established prior to July 20, 1851, shall not be disturbed.

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.