Kay Matthews: Aamodt Settlement – Signed And Sealed But Not Delivered

Editor of La Jicarita

Maire O’Neill of the Los Alamos Reporter seems to be the only local reporter who bothered to let people know that the additional funding sought by the New Mexico congressional delegation to underwrite the Aamodt Settlement was appropriated in December of 2020:

“A provision in the Consolidated Appropriations Act of 2021 signed into law by President Donald Trump includes $137 million for the Aamodt Litigation Settlement Completion. This amount raises the federal cost ceiling for the $406 million Pojoaque Basin Regional Water System project and amends the Aamodt Settlement to extend the substantial completion date of the project by four years to 2028.”

This pattern of neglect has long been extant in media coverage of the controversial settlement that took 55 years to come to fruition. To understand why, we need to look back at a history that relied 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 that 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.

Not only does this history reveal the Aamodt Adjudication Settlement’s failures but also the deeply dysfunctional adjudication process in general. With the power of the feds, the state, and Santa Fe County behind it, there wasn’t much motivation to potentially derail a train carrying so much baggage.

I’ll begin with the particulars of this case that governs a relatively small amount of water within the Pojoaque Valley that I think will also make clear why the Office of the State Engineer (OSE) has been incapable of completing so many adjudications in a timely fashion.

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 a breach of the 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 el norte water rights.

Parciantes and acequia associations came together (19 groups and individuals in total) to protest this transfer of 600 acre feet per year (afy) of water before the OSE. The rationale for the 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.

As the protest dragged on into the 2000s, Edwin Mechem, the sitting judge in the Aamodt Adjudication, which governs the pueblos of Pojoaque, San Ildefonso, Tesuque, Nambe, and non-pueblo water rights owners in the Pojoaque Basin, issued a ruling that limited the pueblos’ water rights, without provision for future use. The political fallout was swift: then Senator Pete Domenici met with the pueblos and the Pojoaque Valley Irrigation District to convince the parties 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. The pueblos would be guaranteed future use rights.

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 well into the 2000s as the settlement agreement was hammered out.

What has made the Aamodt Adjudication so complex—and controversial—is that it involves pueblos, which 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 the Aamodt settlement negotiations, parciantes and domestic water rights owners complained they were not well represented in the process and after almost 60 years 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. When people questioned the fairness—and wisdom— of guaranteeing future pueblo use rights (2,500 afy) while non-pueblo residents were limited to existing rights (750 afy), the judge who presided over the settlement negotiations said: “We’re not going to sugar coat this proposal. It provides protection of your existing use, period. If you don’t accept that, the Pueblos have the right to make a priority call on your water. You could lose everything.”

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 (our original protest then became obsolete). 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.

On July 14, 2017 the parties to the Aamodt Adjudication signed the Final Decree and Judgment: the city and county of Santa Fe, the state of New Mexico, the Bureau of the Interior, the pueblos of San Ildefonso, Nambe, Tesuque, and Pojoaque, and the U.S. District Judge. Four days later the New Mexico State Engineer denied the Taos County TOW protest. Three hundred and seventy-five water rights owners filed an appeal of the final decree in 2017 but the appeal was denied.

The Bureau of Reclamation vastly underestimated the cost of the water supply system by $193 million, thereby forcing the New Mexico congressional delegation to submit the bill just passed seeking the $137 million federally needed additional funds. The rest of the shortfall will be spread between the state and county governments: the state commitment is increased from $57 million to $100 million total; the county will be responsible for $34.4 million, with $24 of that “deferred” until Phase Three, the last phase, or build-out of the distribution lines to residences that have signed onto the system. The BOR is currently pursuing “Limited Construction” of the system, essentially the infrastructure necessary to build the collector wells at San Ildefonso. 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 (water rights in addition to the TOW rights were acquired through other transfers).

Another aspect of the agreement that has stirred controversy in the non-pueblo community is that Santa Fe County may use its portion of Phase Three 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, Santa Fe County Aamodt Project Manager, 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.”

Many of non-pueblo water rights owners question whether Phase Three will actually be achieved. Deven Bent, a water rights owner who hosts the Pojoaque and Española Valleys Forum on Facebook, 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.” He also 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.  

Back in 2015 I wrote an article in La Jicarita called “New Mexico Water Adjudications: Oh What a Tangled Web We Weave,” in which Third District Judge James Wechsler invited the OSE legal team to report on its progress regarding the adjudications over which he presides—San Juan, Pecos, Rio San Jose, and Santa Fe River—as well as the Lower Rio Grande Adjudication in the south and the long-standing ones in the north—Aamodt, Abeyta (Taos), Jemez, and Chama. As I stated in the article, “it wasn’t pretty.” The OSE complained they didn’t have the resources to finish adjudications in a timely manner and the judge complained that there seemed to be no consistent pattern in how the agency established priority and procedure. As Colorado College professor Eric Perramond states in his book Unsettled Waters: Rights, Law, and Identity in the American West, “What is stunning about the Aamodt and the Abeyta [Taos Pueblo] cases is how little water was involved overall given the decades of time and resources spent. The quantities bickered over, litigated, and finally settled for pale in comparison to what awaits when the state decides to address the water rights of the Albuquerque and Middle Rio Grande region.”

But as these adjudications slowly wend their way through the courts or in settlement hearings, there seems to be little acknowledgment, by either the parties or the courts, that water being assigned to each river system is not only “paper water,” meaning theoretical water rights based on historical or potential beneficial use, but may not exist at all. After the excruciating drought we experienced last year, where water managers had to release emergency flows from the upper watershed reservoirs to keep farmers alive down south, and the forecast of increased climate change disruption to our water supply, one would hope that future adjudications will incorporate these factors into their court decrees or settlements. The Aamodt is signed and sealed but it remains to be seen if it will be delivered.

Editor’s note: Kay Matthews is the editor of the online La Jicarita, (www.lajicarita.wordpress.com), an online magazine of environmental politics in New Mexico. She is the author of “!No Se Vende! Water as a Right of the Commons”, which is available at her website (https://acequiamadrepress9000521.wordpress.com/orders/).