Communities in rural New Mexico are watching apprehensively as the Rio Grande Valley’s growing water needs threaten to deplete their water resources, two state legislators said recently.

Attorneys for members of several of the communities have challenged applications to the Office of the State Engineer (OSE) by the developers of two large projects to transfer water from other parts of the state into the Valley.

One project, Berrendo LLC, would transfer more than 2 billion gallons of water a year from a site near Fort Sumner to somewhere near Santa Fe. The second project is asking the OSE for permission to drill 37 wells on the San Augustin Ranch in Catron County, then pump about 17 billion gallons of water a year to the Rio Grande.

An OSE hearing examiner denied Berrendo’s applications Feb. 8 on the grounds the company failed to name an actual end user of the water or a move-to location where the water would be used — requirements under New Mexico’s water law and constitution, which states that beneficial use is the basis, measure and limit of a water right.

The company’s lawyers have filed a notice of appeal in the state’s 10th Judicial District Court.

Protestants’ lawyers in the San Augustin case say that application, too, is an attempt at water speculation that fails to list specific uses or delivery points.

Oral arguments on their motions to deny the application were scheduled to begin May 20, but that hearing was canceled because an OSE hearing officer retired. No new date had yet been set, according to the OSE.

State Representatives Don L. Tripp, R-Socorro, and Dennis Kintigh, R-Roswell, said the cases highlight a larger issue: attempts to transfer water to meet the critical water needs of cities in the Rio Grande Valley are a threat to their constituents’ ways of life.

“The cities get larger and they have more clout in the legislature … then the emphasis on them getting the water, rather than leaving it in the outlying areas to keep them alive becomes a big risk,” Tripp said.

State Engineer John D’Antonio told Veritas New Mexico that transfers of water into the Valley probably will have to be looked at if Middle Rio Grande communities continue to grow at their current rate.

“You don’t have enough transferable water rights to continue to endlessly grow in Albuquerque and Rio Rancho,” he said.

He said his office “will almost have to have” more applications in the future, to foster discussion on how much water can properly be transferred from one part of the state to another. However, any such applications must closely follow the dictates of state water law, he added.

D’Antonio said he recognizes a long-standing conflict over water between areas on the Rio Grande and other parts of the state, as shown in the state’s regional water plans.

But, the OSE must take a statewide — rather than regional — view when considering the public welfare aspect of proposed water projects, he said.

Kintigh said D’Antonio is focused too closely on the needs of the Rio Grande corridor:

What do those two words — public welfare — mean independently? Who is the public? Is it a community, a region, or is it the whole state? And what constitutes welfare? I think what D’Antonio said is a valid statement of his responsibility. The question is: Is the state as a whole benefitted by encouraging balanced development in all regions or is it benefitted by continuing to quench the thirst of the Middle Rio Grande?

Kintigh is one of about 40 protestants in the Berrendo case. Other protestants include economic development groups and chambers of commerce, irrigation districts and water users associations from communities in the Pecos River’s drainage area, as well as governmental groups like the U.S. Bureau of Reclamation and the state Interstate Stream Commission.

The company that owns the San Augustin Ranch has said it wants to pipe water to a point on the Rio Grande near Socorro, where it could be used, among other things, to help upstream communities offset water they take from the river, to help meet New Mexico’s obligations under the Rio Grande Compact with Texas.

About 1,000 parties in Catron and Sierra counties have filed protests with the OSE over the company’s proposal.

Protestants in this case include hundreds of private citizens, plus the U.S. Department of Agriculture, the Bureau of Reclamation, the Bureau of Land Management, the Interstate Stream Commission, the Navajo Nation, the Alamo Navajo Chapter, six pueblos, Catron County and the villages of Magdalena and Reserve, the University of New Mexico and Freeport McMoran Inc., which owns the copper mine in Silver City.

Tripp said the heavy pumping proposed by the San Augustin Ranch company would “take the life’s blood” from rural communities in his district.

“I would oppose that at all costs,” he added.

Throughout the 20th century small towns like Reserve and Magdalena saw their economies shrink, Tripp said. People who stay in those towns — and others in the area — do so because they love a certain lifestyle. But, living there is still precarious.

“If you lose the little water system in Pie Town, Pie Town goes away. They barely have enough water; if they get a good well it may pump 4 gallons a minute, which is no amount of water. A significant transfer out of those areas can have real cascading effects on what people have for their personal use,” he said.

D’Antonio and protestants’ attorneys Bruce Frederick and Steven Hernandez all said even if the two applicants succeed in defeating the initial challenges, they would face additional hurdles. If the challenges are defeated, the application processes must begin all over again and the applicants would then undergo discovery about the validity of their water-rights claims and the workability of their projects.

They would also have to prove — according to state law — that their applications do not harm already existing water rights, are not contrary to the conservation of water in the state and are not contrary to the public interest, D’Antonio and the two attorneys said.

Frederick, of the New Mexico Environmental Law Center, represents many of the San Augustin protestants. Las Cruces attorney Hernandez represents the Middle Rio Grande Conservancy District, which is challenging the San Augustin application, and the Carlsbad Irrigation District, which is challenging the Berrendo application.

John Draper, an attorney for the applicants in both the Berrendo and the San Augustin Ranch water cases, did not return repeated calls requesting comment. Besides being an attorney for the applicants in both cases, Draper also is a contract attorney for the OSE who has been paid $28,841 for ongoing services in the office’s Lower Rio Grande Water Rights Adjudication, according to the OSE’s Litigation and Adjudication Program.

The cities in the Rio Grande Valley have made clear their need to increase their water supply and desire to import water since, at least, the time regional water plans were drawn up in the early 2000s.

The water plans for the Jemez y Sangre region, which contains Santa Fe, and the Middle Rio Grande, which contains Albuquerque, both state a desire to import water from outside their regions. On the other hand, the plans for other regions explicitly state their desire to keep their water.

The water plan for the Jemez y Sangre region was accepted by the Interstate Stream Commission in 2003. It projected a deficit between water supply and demand of 21,600 acre feet a year by 2040 and 31,700 acre feet a year by 2060. One acre foot equals 325, 851 gallons. The planners produced several white papers discussing ways to increase water supply, including one titled “Purchase Surface Water Rights,” although the discussion in the paper includes obtaining groundwater rights as well.

“This alternative has the potential to increase the supply available to meet growing demand by either transferring water rights from an existing agricultural use within the region or from areas to the north or south of the Jemez y Sangre water planning region,” the paper says.

Charlie Nylander, chair of the Jemez y Sangre Water Planning Council, said the numbers have been revised downward since 2003 to show a zero deficit by 2040 and a 9,100 acre feet a year deficit in 2060. The reduction is due to lower population growth, water conservation, greater reliance on San Juan- Chama water and the leasing of Native American water rights. That projection has fluctuated slightly in recent years due to changing circumstances, he added.

The Middle Rio Grande region’s water plan, accepted in 2004, is more blunt than the Jemez y Sangre plan. It states “average demand has exceeded supply by approximately 55,000 acre feet a year, and that during the unusually wet last quarter of the 20th century.”

One alternative for increasing the region’s supply of water, the plan says, is to “acquire additional water rights without condemnation from various sources within or outside the water-planning region, and import water from other basins where possible.”

The numbers in the Middle Rio Grande plan have not been updated since 2004, said Kevin Bean, president of the Middle Rio Grande Water Assembly, which helped draft it, and the 55,000-acre-feet-a-year deficit is still the best available estimate. D’Antonio said he has heard a figure as high as 70,000 acre feet a year for the Middle Rio Grande.

In contrast, the 2003 Socorro-Sierra Regional Water Plan states, “In a market where water rights can go for more than $5,000 an acre-foot, it may be very difficult for land and water rights holders … to turn down a purchase offer. This alternative therefore focuses on ways to counter-balance such pressures.”

The 2007 Northeast Regional Water Plan states, “While the steering committee does not aim to prevent all transfers between sectors, it strongly opposes any large-scale transfers out of the Northeast Region.”

The 2008 Taos plan says one of its goals is “Develop mechanisms to ensure that the water rights of the Taos Region are considered in proceedings regarding transfers of water rights to other purposes or places of use outside the region.”

D’Antonio said there “most definitely” is a conflict among the regional water plans, but, despite that, his office probably will have to consider transfers from other basins if populations in the Rio Grande Valley continue to grow. Again, he emphasized that any transfers that occurred would have to meet the three statutorily mandated imperatives: no impairment to existing water rights, nothing contrary to the conservation of water within the state and nothing detrimental to the public welfare.

Applications to transfer the water, when they are properly structured, could serve as test cases for working out the “spongier” issues of conservation of water and public welfare, he said:

That’s where we almost have to have those applications filed, so we can let the public welfare discussion take place. You don’t ever want to have an Owens Valley, a transfer that took all the water out of a basin, but there’s a certain amount of water that’s probably OK to take out, if the economics support it. Let’s find out what that is; let’s find out what constitutes public welfare.

Kintigh said he sees possible problems for his area with even limited transfers.

“Depending on the quantity and the duration, it’s not a cliff we’d be falling off. It’s more of a mountain, where we’d start to climb this increasingly steep peak, and what would be getting steeper would be our ability to maintain a lifestyle and economic activity. The reality is water is crucial,” he said.

Of the market forces that make water deals increasingly attractive to entrepreneurs, he said:

I respect the free market … but, this is analogous to the old saying that the right to swing your arms ends at my nose. I’m not an expert, but I do understand that what you do in one place can impact folks downstream. We are not entirely independent. So, while I really respect the concept of the free market, the concept must be mitigated by the recognition that there is not complete ownership. There is an impact on others; that makes it complicated.

Tripp was more fatalistic. He noted that already there is an established practice in the Rio Grande Valley of transferring water used for agriculture to municipal/industrial use.

“Water is a commodity and has a market. It’s a property right, so you can’t restrict people from selling it in one area. There’ll be a slow evolution to where there’s less agriculture in the Valley, we’ve seen that in Tucson and Phoenix. And as the Middle Rio Grande grows we’ll see the same thing,” he said.

Nevertheless, he would oppose transfers that damaged the small communities in his district and public welfare is a critical concern for his constituents, he said.

Berrendo developer Ron Green said conditions in the Middle Rio Grande Valley create demand for water projects like his.

“The Middle Rio Grande corridor contains 65 percent of the state’s population. The state capital is there, the universities, the largest communities, and growth has outstripped available water,” Green said. “Some of the metropolitan areas were given permits to pump with the caveat that once their ground water effects reached the river they were to retire water rights to offset those effects and some of them are struggling to find enough water to meet those requirements — it’s not there.”

“Right now Santa Fe and Albuquerque are working diligently on their surface water diversion projects, which primarily use water from the San Juan-Chama project, which is imported water from the upper Colorado River,” he said. “But there are possible problems with the Colorado River Compact. The downstream users — Arizona, California and Nevada — have a priority of 7.5 million acre feet. If there’s ever a priority call, because those states don’t feel their full right to water is being delivered, there could be issues with the San Juan-Chama water.”

“Also, there’s about 230,000 acre feet a year of water used in the Middle Rio Grande for domestic purposes. At a 1 percent growth rate, they need another 2,300 acre feet a year. I could bring in 16,000 acre feet and within seven years of growth there’d be no more of that water,” he said.

Finally, it’s also a matter of money. Ten to 15 years ago water rights in the Middle Rio Grande were selling for $5,000 to $6,000 an acre foot. Just prior to the recession, they had reached $35,000 to $40,000 an acre foot, Green said.

“That’s indicative of supply and demand,” he added.

Santa Fe Assistant City Attorney Marco Martinez said his city’s Public Utilities Committee heard a presentation from Green in 2008, but didn’t enter contract negotiations and hasn’t talked with him in some time. On the other hand, Peter Wells, spokesman for the city of Rio Rancho which does not receive San Juan-Chama water, said April 4 that, while that city has no contract with Green and isn’t sure his proposal works within the context of Rio Rancho’s current permits, discussions with him are on-going.

Bean said there is another model available to planners in New Mexico.

“The stresses are really apparent. We ought to be in emergency management mode,” he said. “Everybody can see this stuff coming, but there’s not a whole lot of reaction to it; there’s just waiting.”

“There’s two ways to deal with shortages,” he said. “Those with political and economic power can either take everything they can for themselves or there can be an be an equitable distribution of what’s available. The system as it’s set up now favors the former approach. That’s how the state manages its water, winner take all. That’s what’s going to happen as these shortages grow worse, absent a fundamentally different way of approaching water management. But, we have a model. We have a centuries old acequia system in New Mexico that provides a pretty good model of how you do that. Don’t shut everybody off, but everybody has to cut back. Shortages are shared by everybody. That’s the best model I know of.”

Reuse, recycling and conservation of water are critical to such a model, Bean added, “but we also have to look at absolute limits and nobody wants to do that.

“What’s the carrying capacity of our environment? It’s certainly well below where we are now, but we need to know realistically where that is and plan accordingly,” he asked.

Kintigh said the issues surrounding water management and the public welfare should be resolved in the Legislature, not in administrative hearings or the courts.

“Two summers ago, in Angel Fire, we had a joint meeting of the legislative interim committees on Courts, Corrections and Justice and Water and Natural Resources,” Kintigh said. “The meeting was to discuss the Office of the State Engineer’s adjudication status for the Middle Rio Grande.

“I have never seen so many legislators at an interim committee meeting. I think I counted 42,” he said:

I mention this, because I think there’s an interest in trying to tackle this and we need to start the process of resolving of how we deal with these water issues. We can’t wait. We need to know how much water there is and who’s using it. If that means lots of adjudication and more metering, so be it. We have limited resources and we have to decide where we spend them, but this becomes where we as legislators have to make the hard calls.

The ownership of the San Augustin Ranch is unclear.

Records with the state Public Regulation Commission Corporation Bureau show Augustin Plains Ranch LLC is registered in New Mexico, with a headquarters in New York. However the water rights application submitted to the OSE in 2007 was signed by Bruno Modena and notarized in Milan.  An April 24 article in the Portland (Maine) Press Herald, says the group behind the San Augustin project is the same Modena family that pushed a controversial proposal to turn 3,200 acres north of Maine’s Acadia National Park into an “eco-tourism resort,” with hotels, a golf course and carriage roads.

New Mexico Environmental Law Center Executive Director Douglas Meiklejohn said that while in New York he attempted to visit the ranch’s office at an address given on paperwork submitted to the OSE.  However, he was unable to find an office labeled with the name “Augustin Plains Ranch” or “San Augustin Plains Ranch” at that address.

Photo: “Summer storm clouds over the high road to Taos, New Mexico” courtesy of Geraint Smith, Taos, N.M.(www.geraintsmith.com)

Author Jack King has been a reporter in New Mexico for approximately 15 years, working in the south, northeast and in Albuquerque.  He has covered water issues for most of that time.

Further reading:

N.M. regional water plans

Middle Rio Grande Water Assembly:

San Augustin Water Coalition website

Portland Press Herald: Schoodic’s future still unsettled

Albuquerque Journal: San Augustin ranch breaks silence

Santa Fe New Mexican: Mysterious firm’s water plan draws protests

Santa Fe New Mexican: Private water pipeline plan gains steam

Santa Fe New Mexican: Farmers weigh in on Fort Sumner water pipeline project

Santa Fe New Mexican: State nixes water rights transfer for proposed pipeline from Fort Sumner to Santa Fe