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Volume XII |
February 2007 |
Number II |
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Editorial: Maybe it's Time for the Peñasco Area Acequias to Organize By Kay Matthews and Mark SchillerANNOUNCEMENTSParciantes Reject Santa Fe County Offer to Settle Top of the World Water Transfer Protest By Kay Matthews |
Editorial: Collaboration or Exploitation? You Be the Judge By Mark Schiller |
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Editorial: Maybe it's Time for the Peñasco Area Acequias to OrganizeBy Kay Matthews and Mark Schiller
Acequia Abajo de El Valle ditch cleaning crew Ten years ago, in the June/July 1996 issue of La Jicarita News, we covered a meeting of acequia mayordomos and commissioners who had come together to discuss the possibility of organizing a regional acequia association for the Peñasco area (we used the same picture as below, también). Taos Valley Acequia Association President Palemon Martinez attended the meeting and told the parciantes why an association can benefit water users. The first reason he discussed was the fact that the state was in the process of developing regional water plans that will influence future water litigation, water development, and legislation. As an association, acequias would be better equipped to identify their needs, influence legislation, and protect themselves during legal processes such as adjudications. The Draft Taos Regional Water Plan was just completed (see La Jicarita News, November 2006) without the benefit of a Peñasco area association. Fortunately, the Taos Valley Acequia Association participated in the process and provided advocacy for acequias. The adjudication of the Rio Pueblo/Rio Embudo watershed has yet to happen. Martinez's advice to present a united front through an association of acequias is therefore still pertinent. Peñasco area parciantes should also bear in mind that the adjudication of the Rio Pueblo/Rio Embudo watershed will include the adjudication of Native American water rights, which as the Aamodt and Abeyta adjudications have demonstrated, can be fraught with years of contentious negotiations. It's critical that area acequias speak with one voice and initiate a dialog with Picuris Pueblo as soon as possible. There are many other reasons to form associations. They can aid parciantes in obtaining grants to maintain or rehabilitate their acequias, provide help in updating bylaws, take the lead in protecting local acequias against attempts to transfer water or change its use from agricultural to commercial, and lobby the legislature on bills that may affect agricultural water users. A few years after the Peñasco area acequias attempted to organize an association, acequias in the Dixon/Embudo area did just that and formed the Embudo Valley Acequia Association. That association obtained an automatic seat on the Congreso, or the governing body of the New Mexico Acequia Association (NMAA), another advantage to forming an association. The NMAA is an acequia advocacy organization that influences water policy and provides education and support to associations, acequias, and parciantes all over the state. The delegates from each regional association can help determine that policy and in turn reap the benefits of what the NMAA has to offer. There are now twenty regions in the state that send delegates to the NMAA Congreso, from Mora to Tierra Amarilla and Tularosa to Mimbres (delegates from Chamisal y Ojito also serve on the Congreso). The Peñasco area acequias are the only ditches in north central New Mexico that haven't formed a regional association. After the initial meeting held ten years ago, representatives from acequias on the Rio Pueblo, Rio Santa Barbara, Rio Chiquito, and Rio de Las Trampas continued to meet and began the process of drafting bylaws and articles of incorporation. In January of 1997 a standing-room only crowd gathered to hear New Mexico Legal Aid water attorney David Benavides talk about the importance of organizing an association to protect acequia water rights and prepare for eventual adjudication. Benavides also assured parciantes that a regional association would in no way affect individual acequia commission authority to implement and enforce its own bylaws. Most of these parciantes, mayordomos, and commissioners are still out there, irrigating their fields, orchards, and gardens. Maybe it's time to come together and finish the work we started. We hope this editorial will initiate a dialog within the community. ANNOUNCEMENTS• Water Trust Board bills have passed the House Agriculture and Water Resources Committee. HB 55 would increase the Water Trust Board to 17 members and HB 53A requests that $60 million be added to the Water Trust Fund, which last year became a permanent fund that can be used only for water projects (last year $40 million was appropriated). • The Surface Owners Protection Act, HB 827, has been introduced to protect land owners affected by oil and gas development on their land. If passed the bill would require the oil and gas industry to notify landowners 30 days prior to any drilling operations, to describe the operations, and to propose a surface use and compensation agreement. The landowner then has 20 days to accept, negotiate, or reject the offer. If no agreement is reached, a bond must be posted before operations begin and the landowner retains the right to bring legal action within six years if land damage occurs. • Funding to help acequia commissions with workshops and technical help from the New Mexico Acequia Association (HB 230) has passed the House Agriculture and National Resource Committee (SB 33 is moving through committee). The bill seeks $500,000 to help write bylaws, establish open meeting procedures, and seek funds for the rehabilitation of ditches. • The House of Representatives passed House Joint Memorial 13 that opposes the creation of a national identification card and implementation of the Real ID Act of 2005. This act mandates that states implement its provisions of issuing driver's licenses that would act as national identity cards by 2008. The bill calls on the state of New Mexico to oppose implementation of any portion of the Real ID Act, to defend the rights of states to issue driver's licenses in a manner that reflects the diversity and unique public safety needs of the state, to not appropriate state funds to implement the act, and to urge the U.S. Congress to repeal the act. • HB 140cs, the Individual Development Accounts Act, has passed the Judiciary Committee. This bill would expand a program that already provides more than 650 low income individuals with interest bearing savings accounts that match their savings dollar for dollar. Funds from the accounts can be used to pay education costs, buy or improve a home, or start a business. HB 140cs would also allow individuals between the ages of 15 and 18 from low income families to also establish savings accounts to pay for education needs. A separate appropriation bill will be introduced to allocate $1 million from the general fund on a recurring basis. • A bill to abolish the death penalty and replace it with a sentence of life without parole passed the House on February 12. Similar legislation has been introduced since 1999 by Rep. Gail Chasey, who argues that it discriminates against people of color and those who live in rural areas or are poor. The state spends millions of dollars a year on the capital punishment system even though New Mexico has had only one execution since 1960. • Senator David Ulibarri (D), District 30, (Cibola, Socorro, Valencia) introduced Senate Joint Memorial 10 (SMJ10), requesting the New Mexico Department of Environment, Energy, Minerals & Natural Resources remove "existing barriers" for more uranium development. As La Jicarita went to press, SJM10 was scheduled for a hearing on Friday, February 16, by the Senate Rules Committee (SRC). If this memorial passed committee, please contact representatives of the affected counties of Cibola, Socorro, and Valencia or the Navajo Nation Easter Agency Chapters to register your opposition. Parciantes Reject Santa Fe County Offer to Settle Top of the World Water Transfer ProtestBy Kay MatthewsA number of acequia parciantes and acequias that are protestants to the Top of the World (TOW) water transfer application recently rejected a settlement offer from the applicant, Santa Fe County (co-editor Mark Schiller and I are among the protestants). This means that the case will go to a hearing before the Office of the State Engineer (OSE), where the protestants intend to argue that the transfer is detrimental to the public welfare of New Mexico and contrary to sound conservation practice. The protest against the county's application to transfer 588 acre feet (afy) of groundwater from the TOW Farm to water rights in the county has a long-it was first filed in 1997-and complicated history. Originally, the city and county of Santa Fe planned to build an infiltration gallery on San Ildefonso Pueblo to divert water from the Rio Grande above Otowi Gauge (where the Otowi Bridge crosses the Rio Grande between Pojoaque and Los Alamos) and pipe it to the Buckman Well Field, Santa Fe's main source of water. The Rio Grande Compact-which governs the distribution of water from the Rio Grande within Colorado, New Mexico, and Texas-divides New Mexico into three basins: from the Colorado state line to the Otowi Gauge; from the Otowi Gauge to Elephant Butte Reservoir; and from the Reservoir to the Texas state line. The Otowi Gauge is so named because it is the location of the gauge indexing the river flow and determining how much water must be delivered to Elephant Butte Reservoir to satisfy New Mexico's obligation to Texas. The Office of the State Engineer (OSE) has traditionally refused to transfer water from one basin to another because it could subvert the terms of the Rio Grande Compact. Santa Fe County applied to transfer groundwater rights from TOW to water rights in the Rio Grande that would be diverted from the river at the infiltration gallery, located above the Otowi Gauge, via a shaft that runs beneath the river alluvium and collects water that seeps into the sand and gravel aquifer beneath the river. The county would then pipe the water to the Buckman Well Field, below the gauge. We filed our protest claiming this was an attempt to circumvent the terms of the Rio Grande Compact, which acts as de facto protection against the transfer of norteño water. Our overriding concern was that allowing such a diversion would open a loophole for developers, municipalities, and environmentalists to transfer norteño water rights below the gauge. We also questioned whether the groundwater being transferred has a direct hydrological connection to the Rio Grande, and whether the infiltration gallery would negatively affect surface water flows in the river or groundwater levels in the vicinity of the diversion. Several pre-hearings were held to raise what were called "threshold" issues, including who actually owned the water rights. There was a dispute between then owners, Wrangler Properties, and the four individuals who were applying to transfer Top of the World Farm rights. In the summer of 1999, Taos developer Tom Worrell's company, Macho Grande de Rio Grande, based in the Virgin Islands, purchased the entire 3,000-plus acres of Top of the World Farm land from Wrangler Properties. When I called Dharma Properties, Worrell's Taos-based company, to find out if Macho Grande had indeed bought Top of the World Farm, a spokesperson told me it was Worrell's intent to "keep the water rights in Taos County." Soon after that, however, Macho Grande signed a quitclaim deed to the disputed water rights, opening the door for the transfer to Santa Fe County. The second threshold issue, whether these water rights were ground or surface rights, was never adequately addressed during the pre-hearings. The case never went to a full hearing, and significantly, the city and county determined that the single infiltration gallery at San Ildefonso was not a cost-effective way of diverting the water. Fast forward to 2004. Santa Fe County, one of the participants in settlement talks on the Aamodt adjudication, committed to help acquire water rights for both the non-Pueblo residents (750 afy) and the Pueblos (2,500 afy), and decided that some of that water would come from TOW. The proposed settlement, which called for non-Pueblo defendants to cap their domestic wells and hook up to a proposed $280 million water delivery system, while guaranteeing the four Pueblos first priority water rights and future development rights, had already elicited a firestorm of opposition from non-Pueblo residents. The county requested a status conference with the TOW protestants, and county attorney John Utton told us if we dropped our protest he would recommend to the county that it not pipe TOW water south of Otowi Gauge. The 588 afy would be used only for the water delivery system to non-Pueblo residents in the Pojoaque Basin, north of the gauge. The proposed Aamodt settlement, however, was already in trouble when he made this offer; the federal government, in early 2004, announced that it would not commit to underwriting the cost of the water delivery system. Negotiators went back to the table and in May released a "draft conceptual proposal" that did not require non-Pueblo residents to cap their domestic wells. Hook-ups would be voluntary and the delivery system might be "reduced." The city and county still reserved the right to construct a pipeline from a diversion north of the gauge to the Buckman Well Field to meet their growth and development demands. The settlement also allowed a transfer of up to 100 afy of the TOW water rights to offset surface water depletions in the upper basin Rio Tesuque caused by ground water pumping in the Santa Fe basin, which is technically a transfer of water rights across Otowi Gauge. In light of these unresolved issues, we were in no hurry to drop our protest. The county proceeded to acquire the remaining TOW land and attendant water rights and we didn't want to set a precedent that might affect a protest of the second transfer. At a second status conference with the protestants in late 2004, the county attorney told us that if the second application were indeed protested, the Pueblos in the Aamodt adjudication would attempt to acquire San Juan/Chama water rights that are currently designated for settlement of the Abeyta adjudication. In a final settlement offer in November of 2006, drafted by Santa Fe County attorney John Utton, the county agreed to three provisions: 1. The county will amend its application to limit the place of use to the upper Rio Grande Basin above Otowi Gauge. 2. The county will not acquire, transfer, or use water rights from community acequias in order to satisfy its obligation to acquire 750-acre feet per year of water rights under the Aamodt Settlement Agreement. 3. The county will limit the amount of upper Rio Grande Basin water that would be diverted to offset the upper basin Rio Tesuque to not more than 2-afy. When the county's regional water system reaches Tesuque Pueblo the county will not use any upper Rio Grande basin water rights to offset Rio Tesuque depletions by county wells in the Santa Fe basin. While these are all important concessions, the protestants point out that the county claims to have already acquired approximately 3,400 afy of the 4,000 afy it needs for the Aamodt settlement. This list includes: • 750 afy from domestic wells that will hook up to the water delivery system; • 304 afy from Nambe Pueblo; • 588 afy from the first Top of the World application • 1,164 afy from the second TOW application (the county estimates there will be an 18% evaporative loss of these rights) • 800-1,000 afy of Cochiti Lake evaporative rights (this is highly speculative and percentages of evaporation are still being argued within the Aamodt settlement negotiations). It's unlikely that the county will try to transfer acequia water rights with or without our settlement agreement, as it would have political repercussions and would no doubt create an administrative nightmare: acequia transfer proposals would be small and piecemeal and would no doubt be protested. Many northern New Mexico acequias have already incorporated into their bylaws the recently approved state statute amendment that requires approval of the acequia commission for any proposed transfer within the acequia system. This provides added protection for acequia rights at the local level. Santa Fe County is also assuming that once a water delivery or utility system is in place in 10 or 15 years the county will be able to divert San Juan/Chama Project water to offset upper Rio Grande depletions that result from its ground water diversions and use within the Rio Grande basin below Otowi gauge. Of course, the Aamodt settlement has yet to be signed by the federal government, whose considerable financial resources are critical to building a water utility, and there is certainly no guarantee there will be a water utility anytime soon. And if the county is betting on acquiring additional San Juan/Chama water rights-it currently has the use of 375 afy of San Juan/Chama water-it will have to fight the parties to the Abeyta adjudication in the Taos Valley. The protestants to the TOW water transfer application believe that water should stay in its area of origin and purpose of use, and that the OSE should deny transfers that underwrite inherently inequitable adjudications, like the Aamodt, and that threaten the integrity of another region or subregion's water resources. After the Taos Regional Water Plan is approved by the Interstate Stream Commission, hopefully in early spring, we will have the framework of its Public Welfare and Implementation Program (see La Jicarita, September, 2006) to help us argue our case that the transfer is detrimental to the public welfare of the state of New Mexico. There are also several technical issues that we will address in our arguments. In May of 2006 the Taos County Commission passed a resolution that it "will support, and possibly join, any protestants to water rights being transferred from Taos County, to protect the traditional culture, communities, and the future growth of the county." While it's too late for Taos County to be a party to the extant TOW protest (unless Santa Fe County revises its application, which it may have to do), when Santa Fe County applies to transfer the second tier of TOW water rights, we will have a strong ally in our fight. The county is currently contracting 450 afy of these rights to Questa, and it's unclear whether the county is continuing to negotiate with the federal government to buy this second tier of rights to transfer directly to the pueblos in the Aamodt.
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Editorial: Collaboration or Exploitation? You Be the JudgeBy Mark SchillerLa Jicarita News has previously written several articles critical of the Collaborative Forest Restoration Project (CFRP), a five million dollar per year federally funded program administered by the Forest Service whose expressed purpose is to provide grants for: 1) wildfire threat reduction; 2) ecosystem restoration; 3) reestablishment of historic fire regimes; 4) reforestation; 5) small diameter tree utilization; 6) creation of forest related local employment; and 7) stakeholder diversity. Previous articles, although they cited specific examples, focused on the general shortcomings of the program, which include: a biased selection process; inflated costs; ineffectual implementation; disproportionate amount of funding going for technical services provided by groups outside the affected communities; and an inability to create sustainable community businesses once the funding has expired. This month we will take a close look at one CFRP project, granted $360,000 for the period between August 2006-July 2009, in order to demonstrate the contradictions between CFRP's mandate and what actually occurs on the ground. The project in question involves the closure and decommissioning of roads on the Coyote Ranger District west of Abiquiu, and, ironically, the funding was granted to and is being administered by the environmental group Forest Guardians. I say "ironically" because Forest Guardians has historically maintained an adversarial relationship with both the Forest Service and the rural communities of New Mexico by seeking court-ordered, unilateral decisions of forest resource management issues that have negatively affected rural economies and, many would say, overall forest health. So the question is: Why, after many years of appealing and litigating resource issues is Forest Guardians suddenly trying to work collaboratively with the Forest Service and members of rural communities on this and several other recent CFRP projects? The answer, I believe, is implicit in a statement Forest Guardians' Forest Program Director, Bryan Bird, made in the October 30, 2006 issue of High Country News regarding another CFRP project in which Forest Guardians is involved. In that article Bird stated: "We [Forest Guardians] believe strongly in a healthy tension between enforcing existing laws and demonstrating that we want proactive work on the ground. The people that fund us want us to hold a line there." The first part of Bird's statement is clearly misleading: besides a few tree planting and river restoration projects done by Forest Guardians volunteers, the group has never previously, to my knowledge, demonstrated that it supports proactive work in the forests of northern New Mexico. In fact, it has actively opposed non-commercial, small diameter thinning projects intended to reduce the risk of wildfire in the wildlands/urban interface, including the Santa Fe Watershed Restoration Project. But it's the second part of Bird's statement that's critical to understanding the group's real motivation because it implicitly suggests that Forest Guardians' principal funders will no longer support its agenda of litigating forest management decisions if the group doesn't also make an attempt to work collaboratively with land management agencies and rural communities to get something done on the ground. However, a close look at this project, I believe, reveals that Forest Guardians is simply giving the "appearance" of working collaboratively without actually doing so. The record demonstrates that Forest Guardians is buying (with the federal government's money) the goodwill of the Forest Service, Coronado High School, and a few local businesses that will financially or otherwise directly benefit from the project without actually engaging the community members who will most directly be affected by the work. Neither does the project build community capacity to create sustainable forest-related jobs once the CFRP funding expires. Let's first take a look at this project's background. Forest Guardians' proposal is part of a Forest Service road closure and decommissioning project on the Coyote Ranger District, which itself has been fraught with controversy. The land impacted by the project is used by local grazing associations and other resource users who must have access to the area for livestock, water resources, fence mending, and salt block placement as well harvesting firewood, building materials, and medicinal plants. Lorenzo Valdez, Rio Arriba County Manager and a member of the Youngsville Grazing Association, contends that neither the resource users nor the county were adequately consulted as part of the public scoping process. While he acknowledges the need for some road closures in the area, he noted that the input of the local communities has routinely been ignored. The fact that two scoping meetings in 2003 drew, by the Forest Service's own admission, almost no local attendance, and the project received a total of only fourteen comments, many of which were from recreationists presumably in favor of widespread road closures, attests to Valdez' contention. Moreover, Valdez notes that the county never received copies of the Forest Service Environmental Assessment for the project nor the Forest Guardians' CFRP proposal, which he says is typical of previous Forest Service practice. Most importantly, he feels that Forest Guardians is attempting to misrepresent its historic relationship with traditional rural communities and that the true intention of their project is to limit community access to forest resources. Rio Arriba County Commissioner Felipe Martinez echoed and amplified Valdez' sentiments. He suggests that no one knows the project area as well as the grazers and other resource users and that it was incumbent upon the Forest Service to insure their input before closure and decommissioning decisions were made. He also asserts that Forest Guardians has campaigned tirelessly to remove all cattle from public lands and it is therefore inappropriate for them to participate in a project that could adversely impact future grazing. He further notes that his constituents don't trust Forest Guardians and "don't want them in the area." Finally, he points out that neither the Forest Service nor Forest Guardians acknowledged that the project area is all former land grant common lands that were misappropriated by the federal government and have a history of community resource use that long predates Forest Service tenure. La Jicarita also contacted Coyote District Ranger Francisco Sanchez who explained that in 2005 he refused to write a letter of support for the Forest Guardian proposal because "Forest Guardians came in at the eleventh hour and hadn't done their homework with regard to consulting with the Forest Service or other potential collaborators." He went on to say that in 2006, despite reservations about Forest Guardians' long adversarial history with rural communities, he did write a letter of support because he was facing a budget shortfall and CFRP funding would help him implement the road closure and decommissioning project. This gives you some idea of this project's contentious background; now let's look at the CFRP project itself. On page 2 of Forest Guardians' proposal under the heading "Statement of Need: What is the current condition and the problem or challenge the proposal seeks to address," it states: "Wildfire frequency and seasonality are related to road density . . . The Ranger District has recognized this problem and has planned and is currently implementing a District-Wide Road Closure and Decommission program . . . . The reduction in the road density of the Coyote Ranger District will lead to a reduction in human-caused fire ignitions." However, the Forest Service Environmental Assessment (EA) for the project states: "The need for this project is to have a minimum road system . . . that provides safe and reasonable access for the public and administrative use, protects National Forest System lands and resources, and can be maintained within anticipated budgets." Nowhere in the EA is there any reference to "human-caused" fires being a problem and, in point of fact, when specifically asked whether human-caused fires were a problem on the district, the ranger responded that they were not. Forest Guardians, citing non site-specific data, manufactured this specious need for road closure in order to comply with CFRP guidelines (wildfire threat reduction) and to substantiate their own agenda of restricting access to resource users. In response to an e-mail inquiry regarding the contradiction between the CFRP proposal's statement of need and that of the Forest Service's EA, Bird claimed: " I would not directly dispute Francisco's [the district ranger] intimate knowledge of his ranger district, but I think we would all agree that a disproportionate road system leads to more access which in turn leads to greater risk of human fire ignition." Forest Guardians' "Statement of Need" then goes on to assert that road closure and decommissioning will enhance wildlife habitat, but fails to even consider how these actions will affect domestic livestock grazing and other sustainable resource uses. On page 8 of Forest Guardians' proposal, under a heading entitled, "How will the project be self-sufficient after activities funded by this grant are completed?", it states: ". . . people trained in survey techniques, revegetation, monitoring and heavy equipment operation will enter the job market and presumably continue this valuable work elsewhere in New Mexico." This clearly seems to imply that local community members will receive training in these job skills that will prepare them to continue this work. However, the proposal later concedes: "no one will be trained to operate heavy equipment . . . Only licensed operators under contract with the Forest Service will operate heavy equipment." (Not surprisingly, the licensed operator, who stands to benefit substantially, wrote a letter endorsing the proj-ect.) Furthermore, the proposed budget allocates only 100 hours per year for instruction, and that instruction, according Forest Guardians' Bryan Bird, "is to help pay for teachers from the [Coronado] high school to come out in the field and some classroom time." According to the budget, the proposal then provides three high school students each year a $100 dollar per week stipend for twelve weeks to participate in the project's revegetation and monitoring programming. This is hardly the kind of training that will provide the basis for sustainable forest-related employment. Moreover, rather than providing training for community members to administer the grant (i.e. do the financial management, accounting, disbursements of funds, and grant reports), a skill that could have real value for locals seeking their own CFRP funding, staff members of Forest Guardians are doing all of the administrative work themselves. Page 4 of the proposal lists "public outreach" as one of the roles both the Forest Service and Forest Guardians assigned themselves as part of the project. It's obvious, however, that neither group made a legitimate attempt to engage the local people most directly affected by the project. Forest Guardians' proposal makes a ridiculous show of contacting eighteen Native American Pueblos and tribes throughout northern and central New Mexico, most of whom are not even remotely connected to the project area, (none of them responded). However, the proposal demonstrates absolutely no attempt to contact the three grazing associations actually within the project area. In point of fact, the CFRP review board, which recommended the proposal for funding, noted one of the proposal's weaknesses was, "There is no sociological monitoring component in the monitoring plan." This is clearly in keeping with Forest Guardians' historic policy of turning a blind eye to issues of social and environmental justice. Meanwhile, Forest Guardians has the gall to claim, "We're moving forward to promote a sustainable forest stewardship economy for New Mexico . . ." Obviously, the Forest Service has a huge stake in trying to demonstrate that it can work collaboratively with a group that has formerly cost it millions of dollars to fight in court. And maybe Forest Guardians can sell this line of b.s. to their funders, but the people who live in the rural communities throughout New Mexico, and who have repeatedly been harmed by their absolutist policies, know better.
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