La Jicarita News January 1999 - Community Advocacy for Northern New Mexico

Although only a small turn-out of Dixon/Embudo residents attended the first of many community meetings scheduled by the Rio Arriba County Planning Department to address issues of growth and development, substantive concerns and possible solutions were discussed. Moderated by planning department employees Ike DeVargas and Steve Sanchez, the meeting's purpose was to determine the county's role in managing growth for all its rural communities. A second meeting will be held at the Dixon Elementary School gym on Wednesday, January 20 at 7:00 pm.

The first issue raised was the concern that as rural communities grow - with both resident families increasing and newcomers moving in - more and more agricultural land is being used up, threatening water rights and riparian areas. Because so much of the area around the Dixon/Embudo communities is federally owned (as is 70% of Rio Arriba County), there is nowhere else to expand. In fact, the Bureau of Land Management's Rio Grande Corridor Plan proposes to acquire over one thousand additional acres in the Embudo/Rinconada area. The idea that some of these BLM lands, which were formally Hispano land grants, be given back to communities for residential expansion has been raised by various community leaders and was discussed at the meeting. Suggestions were made that if new housing is clustered on small tracts of land, septic tank contamination of the watershed could be better addressed and that land banks could be established to protect the more ecologically sensitive riparian lands.

Also discussed was the latest proposal by a coalition of government agencies to set up a waste treatment system that would extend from Pojoaque to Española and as far as Dixon and Embudo. It was pointed out that if this indeed becomes a reality, current county zoning would permit 6,000 square-foot lots in rural communities like Dixon. The question was immediately raised, is this what we really want? As one resident put it, "If the letter of the law is forced into Dixon in terms of services and compliance, the character of the village will completely change." DeVargas also pointed out that if local ranchers are forced out of business, due to more stringent Forest Service and BLM regulations and environmental lawsuits, more hay fields will be sold and subdivided, further eroding the rural nature of the villages.

The group also discussed the BLM's Rio Grande Corridor Plan, which awaits a Record of Decision sometime early next year. DeVargas announced that the county has sent a letter of protest to the BLM citing the Plan's failure to include Rio Arriba County in the planning process, as well as the potential inclusion of additional lands under BLM control. Kay Weiner of the El Bosque Preservation Action Committee, which has also protested the Plan, pointed out that it fails to incorporate any kind of study of the potential economic or cultural impacts on Rio Arriba County of increased recreational use of the corridor. The county will have to deal with significant increases in rafting and its related problems - traffic, pollution, erosion of cultural activities - without economic benefit, as all of the rafting companies are based in Santa Fe and Taos.

Other concerns that were raised, and will hopefully be addressed at the second meeting, include light pollution, regressive tax policies, and the idea that more progressive zoning policies, like conservation easements and district zoning rather than spot zoning, must be considered in county planning.

Editorial

Mica Mine Closeout Plan Masks Franklin Industrial Mineral's Real Intentions

By Mark Schiller

Franklin Industrial Minerals (FIM), which operates a mica mine on US Hill, is seeking state approval to increase its pit size from 5.7 acres to 63 acres. This expansion on patented lands which the company owns will eventually necessitate the use of approximately 200 acres of national forest land for the purpose of storing low grade ore and waste rock. However, in its August 28, 1998 closeout/reclamation plan, FIM proposes to expand only onto its patented lands. According to information provided by FIM, this plan provides only enough area to accommodate one-sixth the amount of waste and low grade ore the proposed expansion will generate. FIM previously submitted a plan which was subsequently withdrawn that included three large waste sites on national forest land. Why FIM withdrew the initial plan and substituted the August 28 plan is a question area residents should demand be answered.

The answer, I think, is fairly simple. FIM withdrew the initial plan because it realized the proposal to expand onto national forest land was already receiving a negative response from Picuris Pueblo, Taos/Rio Arriba Mining Reform Alliance, Rio Pueblo/Rio Embudo Watershed Protection Coalition, and the Sierra Club. An expansion onto forest land would necessitate an Environmental Impact Statement, which includes soliciting public input in accordance with National Environmental Policy Act regulations. This is a lengthy and costly process. FIM's new strategy is clearly to divide and conquer. That is, divide the proposed expansion into two different processes: 1) gain approval from state mining regulatory agencies for the pit expansion; 2) use that approval to leverage the Forest Service into approving expansion for waste storage on forest land.

Area residents should also be aware of the potential impacts of this expansion and reclamation. First, the FIM proposed closeout/reclamation plan does not call for the company to backfill its pit. Instead, the company claims the pit, which will measure up to 330 feet in depth and encompass over 76 acres, will provide "wildlife habitat" and " . . . allow for the continuation of grazing, recreation, and forestry land uses . . . ." The company proposes reseeding the area and constructing a three-strand barbed wire fence around the perimeter of the pit with signs warning of its potential danger. Second, the mine and proposed waste storage dumps include sites that are culturally and historically important to Picuris Pueblo. Third, the proposed expansion will mean a dramatic increase in the number of 18-wheel trucks carrying ore from the mine through the villages of Vadito, Placita, Peñasco, Rio Lucio, Dixon, Embudo, and Velarde, where the ore will be processed. Fourth, although the proposed plan claims FIM will mitigate potential water run-off problems, there is concern that the mining operation could cause erosion and flash flooding, which could impact both ground and surface water.

A dangerous step towards Forest Service approval of the expansion onto forest land has already been taken. A November 19, 1998 letter from Camino Real Ranger District employee Terry Dilts to area residents notes FIM has already trespassed onto 1.36 acres of forest land for low grade ore storage. The letter states the Forest Service's preferred alternative for dealing with this trespass is to permit it until a full mine closeout/ reclamation plan has been completed in two to four years. By choosing this alternative the Forest Service ignores the fact that allowing this trespass will set a precedent for future Forest Service approval of the larger plan. Furthermore, the Forest Service makes the erroneous assertion that "moving the ore is an economic hardship." Cliff Larsen, mining chair for the Santa Fe Group of the Sierra Club, in his December 7, 1998 response to Dilts' letter, conclusively demonstrates that it is economically feasible to process this ore. All of the previously mentioned groups have already written letters expressing their objections to permitting this trespass. While Dilts' letter asks area residents to respond by December 20, La Jicarita urges readers who have not as yet done so to write the Camino Real at P. O. Box 68, Peñasco, NM 87553, to express their concern. Readers can also write Brian Johnson of the Mining and Minerals Division of the New Mexico Energy, Minerals and Natural Resources Department, 2040 South Pacheco Street, Santa Fe, NM 87505, to express their concern about the expansion and reclamation plan.

ANNOUNCEMENTS

• The Rio Arriba Planning Department will hold a public meeting for Velarde area residents on Thursday, January 14 at 7:00 pm at the Oñate Center in Alcalde. The purpose of the meeting is for residents to bring their concerns regarding community growth and development to the department so that possible solutions may be incorporated into county planning and zoning. There is no fixed agenda for the meeting; everyone is welcome to share their concerns with the department. For more information call Ike DeVargas at 753-7774.

• The Rio Arriba Planning Department will hold a second public meeting for the Dixon/Embudo area to discuss planning and zoning issues relevant to those communities. The meeting will be held at the Dixon Elementary School gym on Wednesday, January 20 at 7:00 pm. The first meeting was poorly attended due to scheduling conflicts, and the Planning Department encourages community members to come prepared to present concerns about growth and development, and possible solutions, to department representatives Ike DeVargas and Steve Sanchez. County Commissioner Ray Tafoya will also be invited to attend. If community members wish to do so they may submit written comments to the department prior to the meeting. Please address them to Ike DeVargas, P. O. Box 1256, Española, NM 87532. DeVargas can be reached by phone at 753-7774.

New Mexico Acequia Association Holds Annual Meeting

By Kay Matthews

Tómas Atencio, keynote speaker at the annual meeting of the New Mexico Acequia Association (NMAA), articulated the definitive issue we face as rural community members: "Industrial patterns are not appropriate for the post-industrial age - we cannot accept the dominant society's industrial and capitalistic notion that there are no limits to growth, and we must define our own preferable future." Our water is sacred, and while this natural resource belongs to all of us, as NMAA president Antonio Medina pointed out, parciantes must fight for their right to "use" the water, the lifeblood of rural life.

This theme underlies the purpose and objective of the NMAA, which advocates for the historical and cultural uses of water resources within the state of New Mexico through the preservation and maintenance of our acequia systems. Newly appointed association director, Paula Garcia, outlined the ways in which the NMAA will approach this objective in 1999:

1. To increase the membership of the association "from the bottom up and the inside out" through outreach to local acequias and associations.

2. To capacity build through community-based workshops and the development of an acequia curriculum and handbook.

3. To development water policy through legislative initiative which is proactive rather than reactive and incorporates customary and traditional uses.

4. To help define and implement appropriate economic development that supports acequias and rural livelihoods.

During the meeting the association passed a 1999 resolution to oppose the New Mexico Water Banking Act, which would facilitate the free-market transfer of water rights and potentially diminish an acequia community's ability to manage its own water by creating a centralized, state-directed banking agency. NMAA director Garcia reported on her meeting with Rep. Pauline Gubbels, who is carrying the banking bill. Gubbels agreed to accept revisions of the bill from acequia representatives but probably failed to "hear the message," as association member John Brown put it, that the fundamental concern is that acequias retain local control of their water.

The association also reviewed resolutions passed in 1998, which included opposition to the proposed County of Santa Fe's Top of the World water transfer via an infiltration gallery; opposition to the Water Conservation Act, which would compromise the diversionary rights of acequias (it is unlikely the bill will be introduced in this year's legislative session); support of the Taos Valley Acequia Association's water banking program; and encouraging acequias to assert the "public welfare" doctrine whenever warranted in protesting water rights transfers.

Garcia announced that several NMAA workshops have been scheduled for the coming year. On January 20, a Placitas workshop is planned to address the question of how to protect acequias through the planning and zoning process. Another Sandoval County workshop to strengthen acequia communities will take place in the Cuba/Jemez area, date to be announced. A January 13 workshop to disseminate information concerning the adjudication process and to address agricultural economic development is slated for Tierra Amarilla. A parciante from Lincoln County who attended the meeting requested that the association not neglect the needs of acequia people in the southern part of the state, and requested a workshop in his area.

For more information about any of these workshops, or to become a member of the NMAA, please contact Paula Garcia at 262-2797 or 698-2290. Membership is by parciante and associate (individual or organization), and one of the association's tasks for 1999 is to make sure the association is affordable and open to all acequia users and affiliates.

Community Meets to Plan for Wastewater Treatment

By Catalina Muniz

A community meeting was hosted by the Pueblo of Picuris and the Mutual Domestic Water Associations of Peñasco, Rio Lucio, Chamisal, Rodarte, Llano de San Juan and Placita on Thursday, December 17, 1998 at the Peñasco Community Center. The purpose of the meeting was to inform and get input from the community for a plan to protect the water resources of the Peñasco valley.

The plan would include seeking $50,000 from the New Mexico State Legislature in the 60-day spring session for a regional study to identify wastewater treatment options as a proactive and comprehensive solution to protect vital ground water resources. The study would be a prerequisite in meeting the clean water standards that were passed by Picuris Pueblo several years ago. New, stricter clean water standards from the Pueblo of Picuris are a challenge that the community will face in the near future. Increased growth in the Peñasco Valley communities combined with our reliance upon septic tanks is threatening the quality of the ground water and surface water resources.

Representatives of the Mutual Domestics began meeting in May to coordinate the development of a regional wastewater study. La Jicarita Valley Wastewater Study Committee was formed and has been meeting at least once a month. Together these water associations serve about 900 families.

However, it wouldn't be true to say that all this work started in May. What was started in May built on the work that had been done by others over the past two years with attempts to get money from the state legislature to address our water contamination problems. We learned some valuable lessons from this experience. In 1996, there were two competing bills introduced; the legislature basically told us, go home and work together. Last year, the Pueblo introduced a bill. However, we got started too late and had very little time to build community support. The lessons learned were that one part of the community cannot speak for and represent the whole community, and to be successful you have to start early and build community support. This time around, we have laid the groundwork. We are working together and we are going back to Santa Fe as a united community.

From observing the legislative process in Santa Fe, we gained a new perspective: people who are effective are the ones who show up and participate in the process. Remember the old saying, "Politics rewards those who participate and punishes those who don't." For more information call Catalina Muniz at 587-0110.

A Report Called "State of the Southern Rockies: Greater San Juan-Sangre de Cristo Bioregion." Whose Report and to What Purpose?

By Kay Matthews

An ambitious report called State of the Southern Rockies: Greater San Juan-Sangre de Cristo Bioregion has been sent out to over 400 governmental agencies, environmental groups, and individuals throughout northern New Mexico and southern Colorado by Forest Guardians, its author. The 100-page report is being billed as a call for "collaboration amongst all major stakeholders . . . in developing and implementing a wildlands recovery strategy." The plan proposes we look at governing this bioregion - which encompasses four major mountain ranges, the headwaters of the Colorado, Rio Grande, and Arkansas rivers, the San Luis Valley, and the Upper Rio Grande Valley - on a landscape scale rather than in a piecemeal fashion that fosters inconsistency, argument, and lack of coordination.

Obviously, this goal has merit. New efforts at collaboration and cooperation are being attempted all over the country (all over the world, really) as agency people, environmentalists, and community members tire of fighting and bickering while achieving nothing on the ground. Unfortunately, it appears that while the plan speaks of collaboration, it's a single-vision document: that of its authors, John Talberth, Executive Director of Forest Guardians, and Bryan Bird, its staff biologist. While Bird has stressed that it is only a draft document, and that the group is now accepting input from all concerned parties, the assertion is also made that the report is anchored in "good science and widespread community support." Already the Rio Arriba County Commission has questioned how the authors can claim "community support" when none of the governing agencies - land grant boards or communities, tribal governments, state land commissioners, or county governments were ever consulted about the proposals that are discussed in the report.

In a letter to Forest Guardians the Commission also points out that historically the group has attempted to implement its environmental vision not with collaboration but by court action: the spotted owl lawsuit which shut down the forests of northern New Mexico for 18 months; a lawsuit against the La Manga timber sale in northern New Mexico which dragged on for three years; lawsuits to remove cattle from public grazing lands in New Mexico and Arizona; and a threatened lawsuit to break the Rio Grande Compact which governs water supply in Colorado, New Mexico and Arizona. Now, when the group comes to the public and asks to work together with the same people and agencies it has sued, a less than enthusiastic response is understandable.

While the plan does have some scientific merit, the research and ecosystem analyses are directed at the reading public concerned about environmental issues but who are unaware of on-the-ground conditions and the repercussions of Forest Guardian's actions on forest adjacent communities. The authors present their solution to the ecosystem degradations they document in the form of The Southwestern Wildlands Initiative, a land management proposal that incorporates principles of conservation biology. This basically calls for a system which would connect areas of land that are believed necessary for species and habitat protection. Designated wilderness would be managed with "biological" not "political" boundaries to protect old growth forests, riparian areas, unique vegetation communities and habitat for endangered species. All grazing, mining, oil and gas leasing, and off-road vehicle use would be prohibited in order for these lands to qualify for their stated purpose of being where "the earth and its community of life are untrammeled by man, where man himself is a visitor who does not remain."

There's the rub. As one reader said about the plan, "It's a weaving with no weaver": saving land without people. While this twentieth century definition of wilderness is Forest Guardian's vision, other folks are stepping back and taking a closer look at the idea of "inhabited wilderness", which is a more integrated concept that strives to protect the viability of open lands and all of their communities, including people. This vision is especially important in light of the fact that so much of these lands were former Hispano and Native American land grants, which eventually ended up in the hands of the federal government by illegal means.

In an essay titled "The West that was, and the West that can be," Dan Flores, a history professor at the University of Montana, has this to say about the concept of wilderness: "Wilderness is certainly the wrong word for what early America was. It's the wrong word because its Eurocentric and it obscures more than it reveals. What is obscured is that the garden doesn't have to be free of the human touch to still be a garden." The Commission's letter to Forest Guardians expresses Flores' sentiment in real terms: ". . . any plan that seeks to exclude people, and fails to consider their welfare . . . is not worthy of serious consideration." At a meeting sponsored by the commission for input into its planning and zoning process, one of the main issues raised was the lack of community lands that enable rural people to sustain themselves. Agricultural lands are being subdivided and used for housing, endangering riparian areas and already threatened species. As rural communities become less viable and the population shifts to urban areas, these lands become threatened by further development and industrialization. How does this plan purport to address these kinds of development and growth issues if it fails to incorporate the human species in its analysis? Lip service is paid with statements like "What will we leave our children?" and "sustainable land uses and the survival of traditional culture," but there is no integrated analysis of how to sustain both people and "wilderness." Nowhere does there appear any recognition that the land-based economies of New Mexico are anything more than a relic of the past, soon to be displaced by ecotourism and urbanization, or the understanding that working the land ensures better stewardship. The authors' idea of maintaining the economic viability of rural communities is to "create more employment opportunities in restoration activities." In other words, government welfare for those who are unable to use the land for farming, ranching or any other traditional land-based economies.

What exactly they mean by "restoration" is also questionable. Throughout the report the authors fail to give credence to restoration efforts that involve any kind of commercial thinning because of their Zero Cut (no commercial logging on public lands) agenda. But some of the evidence they use to try to substantiate that ". . . thinning techniques [in ponderosa pine] may actually worsen fire and forest health problems" comes from a paper on a management project in the Northwest; the authors don't tell us whether this information has anything to do with the Southwest.

A new lawsuit recently filed by Forest Guardians and other environmental groups to declare all national forest plans illegal demonstrates how they are now using an economic argument to promote their Zero Cut agenda. The suit contends that because Forest Service timber programs are losing money they have no economic benefit and all commercial logging should be shut down. The groups claim that forests are of greater economic benefit to recreationists if left standing. Tourism, which promotes service industry jobs and virtual experience, should replace any kind of extractive use, whether it be industrial, land-based, sustainable or community driven. This "environmental economics" seems to be the rage these days as environmental groups assign economic value to wilderness and water so they can compete "in the market economy."

The authors also contrive statistics to extol the merits of recreation values as opposed to other uses. They take figures from a survey that found " . . . U.S. households would be willing to pay $35-$41 to have the 4.6 million acres of owl habitat in the Southwest protected" and assign a recreational value of roughly $435 per acre. Yet they give very short shrift to the fact that "not all recreation use is benign." While the report includes an article titled "The New Challenge of Outdoor Recreation," the authors continue to use various statistics to demonstrate the economic value of recreational use, regardless of whether these are dollars from downhill skiing - "which fragment wildlife corridors" - or minimum wage service job dollars.

If you would like a copy of the report, contact Forest Guardians at 1413 Second Street, Santa Fe, NM 87505.

Puntos de Vista

By Peter White, Water Rights Attorney

The November 1998 issue of La Jicarita discusses guidelines for "acequia conservation programs" which have been informally agreed to by the State Engineer Office and the Taos Valley and Rio Chama Acequia Associations. These guidelines set forth a two-step process for the approval of water conservation programs. First, a community acequia would submit an application to the State Engineer for approval of a water conservation program. The application must include water conservation measures recommended by the Natural Resources Conservation Service. Second, the State Engineer staff would devise a conservation plan and implementation schedule for approval by the State Engineer. The principle benefit of a water conservation program is that water rights acquired and placed in a program approved by the State Engineer would not be subject to forfeiture for non-use (see New Mexico Statute 72-5-28(G)). Before acequias attempt to develop water conservation programs pursuant to the State Engineer's guidelines they should consider whether water banking options would provide greater protection for acequia water rights.

The most serious problem facing community acequias in the upper Rio Grande basin is the loss of water rights that result from the construction of houses and roads on irrigated land. If water rights appurtenant to previously irrigated land are not moved to other lands or changed to other water uses, they could be lost under the legal doctrine of abandonment. On the other hand, no water rights have been lost due to statutory forfeiture for non-use of water after 1965 when the forfeiture law was amended. Water banking may be more effective than water conservation programs in protecting individual water rights and acequia diversion rights.

During the past three decades the ownership, nature and extent of many non-Indian water rights in the upper Rio Grande basin have been adjudicated by the courts. These adjudications are based on field survey information obtained in the 1960s prior to the significant population increase of the 1980s. Community acequias within stream systems being adjudicated have formed associations of acequias to protect the diversion rights of acequias and the water rights of their members. The adjudication orders and the associations of community acequias can provide the data and resources needed to develop water banking systems.

It is important to distinguish between water banking systems and water conservation programs. In water banking a water right would be assigned or transferred to a water bank which could allow the right to be used by the other water users under the acequia, or, if the other users had a 100% water supply, the water right could be leased for a new water use. An assignment of a water right would not transfer the legal title to the bank. Title would remain with the water right owner. A transfer would convey title to the bank. In either case the bank could receive payments from the lease of water for any new uses and it could set conditions controlling new uses of water. If overall water use is not increased, water from lands that are not being irrigated could be used to establish a water bank without State Engineer approval. Such a system is merely a private contractual arrangement between the water right owner, the water banking entity, and the new water user. A State Engineer permit would be required, however, to change the place or purpose of use of the water right placed in a water bank, even if the right were used by other users on the same acequia.

A water conservation program would include water conserved by increasing the efficiency of water use. The amount of water diverted or depleted by an existing use would be reduced by eliminating or reducing losses in the conveyance or application of water to a beneficial use. The beneficial consumptive use of water would remain the same.

Under the State Engineer's guidelines for acequia conservation programs, the Natural Resources Conservation Service would make recommendations to the acequia on how it could more efficiently manage its water. Because acequias do not own water rights, the only water that could be conserved or saved by the acequia would be water lost in conveyance from the point of diversion to the irrigated lands. For example, an acequia could be put in a pipeline or be concrete-lined, thereby reducing ditch conveyance losses. However, water diverted by acequias and lost in conveyance usually returns to the stream and can be re-diverted by downstream acequias. Only water that is evaporated from the surface of the ditch or consumed by plants along the ditch might be considered conserved water. These depletions are called "incidental depletions." They are not part of the beneficial depletion of water under a water right. The State Engineer Office estimates that only about 6% of the ditch conveyance losses are incidental depletions (see State Engineer Technical Report 50, page 15, 1998).

There are many difficult legal and factual questions that will have to be answered before the State Engineer can approve water conservation programs. Incidental depletions are not a transferable part of a water right. Water conserved by reducing incidental depletions may not be applied to new uses without a State Engineer permit for a new appropriation of water. Because the Rio Grande is fully, if not over-appropriated, it is unlikely the State Engineer would grant such permits.

There are some who support legislation that would allow the transfer of water made available by reductions in incidental depletions to new uses as an incentive for water conservation. Others oppose such incentives because they may allow new appropriations of water in over-appropriated stream systems or they would subsidize the transfer of irrigation water rights to non-irrigation uses.

In conclusion, the Taos Valley and Rio Chama Acequia Associations may be pursuing a course of action in attempting to develop water conservation programs that may not result in the protection of acequia rights which they seek to achieve.