 The State Engineer Talks to the Legislature Hydroelectricity for economic development?Middle Rio Grande Water Assembly Can We Avoid Litigation Into Perpetuity? Lower Rio Grande Criteria in Preparation Acequia & Ditch Fund Committee ISC Regional Water Planning Grants Directory of Other Resources in Water
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It's OSE, Not SEO! Henceforth, the agency headed by New Mexico's State Engineer shall be known as the Office of the State Engineer (OSE), and not, as before, the State Engineer Office (SEO). That's how it is in the statute that created the Office, (NMSA §72-2-2) and that's how it will be from now on in New Mexico. The change in text and documents is already in place. To minimize costs, the change in letterheads and printed materials will be phased in over time. Staff Sets PrioritiesThe name is not all that's new at the Office of the State Engineer. A staff retreat held in August established priorities for the OSE. Dealing effectively with the backlog of applications to appropriate or transfer water rights was at the top of the priority list for most staff. Strategy to eliminate backlog State Engineer Tom Turney outlined his strategy for reducing application backlog at the WRRI Water Conference on October 1st. The number of applications the agency processes has nearly doubled over the past five years, he said, with no increase in staff to handle them. Applications to the OSE to appropriate or transfer water are first published in a newspaper of general circulation. After publication, Turney said, the application goes into one of two stacks: those that are protested (about 5%), and those that are not (about 95%). Turney is implementing strategies to deal with both stacks. Expediting the Hearing ProcessThe stack of protested applications has been growing for years, Turney said, due to three causes--lack of basin criteria, lack of a hearing officer, and requests from applicants not to go forward with a hearing. Turney has adopted basin criteria for the Tularosa Basin, and OSE staff are working on administrative criteria for other basins. New hearing rules and a full-time hearing unit with its own staff should mean faster service for water rights applicants. The new unit will have a three-person professional staff that includes an attorney and an engineer who will jointly conduct the hearings, and an administrator who will keep the hearing process running smoothly. The proposed rules and regulations for the new hearing process were mailed to about 1400 interested parties in September, and a public hearing was held at the end of that month. Many of the comments received at the hearing and in later written statements addressed the dollar amount of the deposits required to participate in a hearing and whether representation at the hearing by an attorney should be mandatory. Reforming Hearing Procedures"The hearing process outlined in these regulations will ensure greater fairness and consistency in the handling of challenges," Turney said. Under the proposed rules, the Hearing Examiner will schedule a prehearing conference within 60 days after the filing of a request for hearing. This conference is to determine whether protestants have standing and if the OSE has jurisdiction over the issues disputed by the parties. Hearing deposits are due five days before the prehearing conference. The application will be denied if the applicant fails to submit the hearing deposit; the hearing will be vacated if all protestants fail to submit theirs. The new rules would reduce hearing deposits from $300/day to $150/day if the parties accept a tape recording of the proceeding. They would also allow individuals to represent themselves. However corporations, unincorporated associations and partnerships would still be represented by an attorney. This change is aimed at making the hearing process more accessible to the citizen. Timely participation in the hearing process will be required of both applicants and protestants. Currently, many applicants request a delay before going to hearing, while keeping their applications active in order to retain their priority relative to other applications. These requests create a domino effect of delays for subsequent applicants that can stymie the hearing process. Protestants will be required to show specifically that they will be substantially affected if the application is granted. Protests with general statements that "the application will cause harm" will not be accepted. Turney is also considering creating a role in hearings for an advocate for the public welfare. This witness would not have standing as an applicant or protestant, but would speak on the general impact on the public interest of the application being considered. The State Engineer is now in the process of reviewing all the comments, written and oral, he received on the proposed regulations. Changes in the hearing deposit requirement and a requirement for attorney representation for corporations are among those being considered. Streamlining the processThe understaffed agency also has an unacceptable backlog of unprotested applications in the approval process, Turney said. He is making several changes to reduce the time it takes to make an approval decision. As staff resign from other offices, whenever possible their positions will be reassigned to the Albuquerque office where the workload is heaviest. Groundwater applications for North Central New Mexico, once handled by the Albuquerque office, will now be handled directly in Santa Fe. The "little yellow book" of rules and regulations that governs administration of surface-water flows, last amended in 1953, will be updated to reflect changes in computer technology as well as drilling techniques, equipment and materials. District offices will be given more line approval authority to act under new written policies and criteria. The number of application forms will be reduced, their format updated. "It took decades to create this logjam, but I'm confident we are taking the steps to break it up," Turney said. |
The State Engineer Testifies Before the Legislature
In a report to the Legislative Natural Resources and Water Committee on October 10, the State Engineer responded to the legislative memorials that touched activities of the Office of the State Engineer. The report covered five memorials in depth. 1- Preserving river ecosystemsThe State Engineer welcomed the legislature's concerns, which he shares. He told the committee that the OSE was already using water quality under the public welfare criteria in issuing permits, and gave several illustrations.
The Tularosa Administrative Criteria, issued in May of 1997, conditions approval of permits for pumping on a showing that the appropriation will not allow salt water encroachment into existing fresh water zones.
The OSE's present policy also gives standing to protests of permit applications on the grounds that septage or other sources of nitrate would contaminate existing wells.
In response to protests on the basis of possible water quality effects, approval of a recent diversion permit to Santa Fe Ski Basin was conditioned on applicant's meeting groundwater discharge requirements to protect downstream irrigators.
2- Hydroelectricity for economic development?Turney told legislators that, in the absence of storage facilities, hydroelectric plants are subject to seasonal variability that might be problematic for electric generation.
He also mentioned that while some storage sites on the Rio Chama were identified by studies during the forties and fifties, they have since been designated as within the Wild and Scenic River system, and are probably not now available for hydroelectric development.
El Vado and Abiquiu already have hydroelectric systems developed by Los Alamos County in the 1980's, he said, adding that Cochiti has also been considered for hydroelectric power, but culture and socioeconomic considerations associated with the Pueblo of Cochiti argued against hydroelectric development at Cochiti Reservoir.
Small sites with some storage that might be used for hydroelectric generation exist on Willow Creek and at Heron Reservoir. The Jicarilla Apache Tribe is currently studying the feasibility of generating power at the Heron Reservoir site.
3- Interbasin transfersTurney told the committee that the OSE is in the process of preparing a legal opinion on interbasin transfers. He explained that a ban or limitation on interbasin transfers would need legislative authority.
Texas, he said, recently enacted legislation requiring analysis of the environmental and socioeconomic impacts on the area of origin and of the availability of water in the area that will receive the water, prior to approval of such transfers.
Turney observed that an outright prohibition of interbasin transfers could have a significant impact on proposed projects such as those to supply water from Ute Dam to Eastern New Mexico municipalities.
A Water Budget for New Mexicoa) develop a data management system for accurate and rapid storage and retrieval of water use records;
b) build a water budget for the State and for each of its stream systems and groundwater basins;
c) measure all permitted use and return flows and
d) identify water resources and water yield by watershed.
The State Engineer was asked to report back to the legislature with a phasing plan and cost estimate for this major work by December 1, 1997.
a) Turney thanked the legislature for last year's appropriation to develop WATERS, the computer system that will provide data-management and fast, accurate storage and retrieval of water use records. The computer hardware for WATERS has been purchased, Turney said, and entry of abstractions of hard copy files has begun.
b) He also applauded the legislature's desire to establish statewide water budgets, a project he said would benefit New Mexico. Turney told the committee that the Interstate Stream Commission's proposed state water plan would incorporate many of the water-budget tasks mentioned in the memorial. He observed, however, that no funds have yet been appropriated either for the water budget or the state water plan.
OSE staff will estimate the cost of creating basin-by-basin and statewide water budgets by extrapolating from the costs of a water budget for the Middle Rio Grande Basin that was recently developed by Albuquerque and the Bureau of Reclamation. The OSE cost estimate will include modifications and refinements to meet the Office's needs for dependability.
c) To estimate the cost of statewide measurement of diversions, Turney plans to use cost information from the Pecos Valley Artesian Conservancy District as a basis for estimating the cost of metering pumps, and studies done for the Middle Rio Grande Valley by the Bureau of Reclamation to cost out metering of river diversions and return flows.
d) Turney told legislators that the Interstate Stream Commission has funded a limited amount of research on identification of watershed yields, to be carried out by the Natural Resource Conservation Service and Tierra y Montes Soil and Water Conservation District in the Gallinas watershed of San Miguel County. Some recent studies indicate that the water yield from a watershed could be increased up to 25% by changing water resource management within the watershed.
The OSE is concerned about the effects of such wetlands on return flows to downstream water right holders. Specifically, the OSE allows municipal water users to divert more water than their consumptive use rights provided the excess water is returned to the stream. By reducing these return flows, wetland wastewater treatment practices may mean municipal users who employ this kind of treatment must acquire additional water rights or reduce their diversions.
Middle Rio Grande Water Assembly
The Middle Rio Grande is the part of New Mexico most in need of water planning, and the region that is farthest behind in the regional water planning process, Norm Gaume, Chief Engineer for the Interstate Stream Commission, said at the 2nd Assembly for Water Planning in the Middle Rio Grande on Saturday, November 8th. About a hundred and fifty residents of the Middle Rio Grande spent the day working out how to govern a water planning process for the region.
The Assembly's first act was to reaffirm the resolution of the 1st Assembly, held last August, to "call for the development of a Regional Water Plan through an open, inclusive and participatory process." To assure participants that their existing rights are not compromised by participating in the planning process, the resolution was amended to add "Moreover, we affirm as a fundamental principle, that participation in regional water planning through the Middle Rio Grande Water Assembly process shall not in any way be interpreted as modifying, compromising, or placing at risk any water entitlement, claim, or management authority held by the participant independently of the regional water planning process."
1st Assembly participants had asked the team of UNM water experts who served as Assembly coordinators to prepare a proposal for governing the Middle Rio Grande's regional water planning process and to convene a 2nd Assembly. The coordinators sought the help of a number of others involved in water policy in the region, forming an "Expanded Coordinating Committee." This Expanded Committee recommended formation of an Action Committee with three broad groups of members_members of the general public, called "advocates," specialists, and water managers. Each member of the Action Committee would represent a particular constituency within the broad group to which they belong.
After a lively discussion, these recommendations were accepted, and Assembly attendees divided into the three groups to select representatives to the Action Committee.
While the Governance Recommendations suggested that eight members be chosen from each broad group to serve on the Action Committee, the Specialist group proposed twelve, and the Advocates group, fourteen. The Assembly charged the Action Committee with resolving this discrepancy at its next November 19th meeting.
Gaume was asked to talk to 2nd Assembly attendees about the State Water Plan and how the Middle Rio Grande process would fit into it. Though Gaume's talk ended a long and tiring day, the twenty-minute talk was followed by forty minutes of questions from Assembly participants anxious to learn as much as possible about how to make an effective and enforceable regional water plan for the Middle Rio Grande.
Conservation Legislation
Growth and development are increasing water demands and reducing available supplies.Water is a limited resource that must be conserved.
Existing and new water uses should be efficient.
Conservation can provide for additional economic development where water supplies are fully used, and extend the effective lifetime of supplies that are being mined.
Existing water rights must be protected.
This is a list of some of the principles on which the OSE is basing its work on water conservation legislation for the upcoming session.
The list illustrates the change that is taking place in New Mexico's attitude toward water conservation. New Mexicans are realizing that conservation is often the cheapest source for new water supplies, and that, in some areas, conservation may be the only source of new supplies.
The Office of the State Engineer (OSE) has created a Water Conservation Legislation Steering Committee to work on legislative recommendations for water conservation policies. The recommendations are aimed at requiring water use efficiency for all new uses and encouraging water use efficiency in all water use sectors. By providing a water cushion to deal with droughts, and reducing the severity of ongoing water shortages, strong conservation policies can help ensure an adequate water supply for current and future demands. Conservation can also help prevent water quality degradation and reduce water supply costs and water and wastewater treatment costs.
The recommendations are likely to cover most of the following topics:
• Inclusion of water conservation as a water supply alternative in state, regional and local planning activities.
• Consideration of water conservation in providing water-related grants, loans and permits by state agencies.
• Direction to the agency to establish a process of handling conserved water, which would set the terms under which conserved water can be protected against forfeiture, measured and apportioned.
• Direction to conduct conservation activities in the areas of education and outreach, research, technical assistance, demonstration projects and policy initiatives.
The steering committee has also identified other conservation issues which could be addressed by either future legislation or administrative action, but which the group believes are not appropriate for consideration in the 1998 Legislature. Committee staff are discussing these legislative ideas with water user groups, state agencies, and other interested parties to obtain initial comments and reactions. Draft legislation will be prepared in December and made available prior to the legislative session.
State Engineer Water Conservation ProgramFor the NM State Water Conservation Program's home page, go to http://wrri.nmsu.edu.
Scroll down to New Mexico Water Conservation Programs and click, then click on State Engineer Office Program.
Can We Avoid Litigation Into Perpetuity?
The water of the Lower Rio Grande is currently the subject of two massive lawsuits, one in U.S. District Court, U.S. v. Elephant Butte Irrigation District, et al., and one in the State courts, Elephant Butte Irrigation District v. Thomas C. Turney, State Engineer.On September 15th an Order for Stay of Proceedings was entered in the federal case, to allow time for the parties to initiate an Alternative Dispute Resolution (ADR) process aimed at resolving issues on legal title to the water in the Elephant Butte Reservoir.
The negotiations will also deal with water-right transfers, on the theory that if one knows exactly how and under what conditions a right can be transferred, the issue of "legal title" may become less critical.
A related Order for Partial Stay of Proceedings in the State case sets aside the issue of legal title to the water released below the Reservoir to the Elephant Butte Irrigation District, El Paso County Water Improvement district #1 and Hudspeth County Conservation and Reclamation District #1, pending the results of the ADR process on the legal title to the water raised in the Federal litigation.
Alternative Dispute ResolutionParties to ADR retain their due process and appeal rights, so they lose nothing by entering into the ADR process. The savings in time could make all the difference in water-rights adjudication, which typically involve large numbers of parties and last for several decades, so that generations of water rights claimants may be parties to the same lawsuit.
The Lower Rio Grandethe existing agricultural rights in the area to municipal and industrial use. The Bureau of Reclamation is also involved, as the operator of the Rio Grande Project which serves two enormous irrigation districts and about 155,000 acres of irrigated land in Texas and New Mexico.
The issues involve the Rio Grande Compact, a Treaty between the U.S. and Mexico, two States, and nearly 1,000,000 acre feet of water use annually, both surface and ground. The New Mexico State Engineer will need tools to administer New Mexico water rights in this stressed and changing basin long before the half-century duration of a traditional water right adjudication.
OSE Recognized by State Bar AssociationAs a companion to the court-sponsored ADR processes, New Mexico and Texas have recently undertaken direct talks, Austin to Santa Fe, to further attempt to resolve issues of common interest without the need to pursue traditional litigation. The commitment to search for creative ways to arrive at mutually amenable solutions to very complex issues represents an historic first in an effort to avoid litigation into perpetuity.
Drawn from the writings of C. Brian James, Lead Counsel, Lower Rio Grande Office of the State EngineerEmployees in the Spotlight
The most important resource for an agency that serves the public is its employees. This June, the Office of the State Engineer/Interstate Stream Commission initiated an Employee Service Recognition Program that recognizes employees that have been with the agency for five, ten, fifteen years or more, and expresses the agency's appreciation of their contribution on their five-year anniversary dates.
Staff completing their five years of service receive a letter of recognition and a five year certificate. Employees celebrating ten years or more also receive a gift. After twenty years, the five-year anniversary recognition includes a few days of administrative leave. Seven employees have already been recognized, and two more will celebrate their employment anniversaries in December with a special "thank you."
Ernest Coriz, the special assistant to the State Engineer for Indian water resources, celebrated five years with the OSE in June. In August, the District 1 Albuquerque Office expressed its appreciation for administrative secretary Sue Raffay's ten years of service with their office. Currently with the Design and Construction Bureau, Elaine Pacheco celebrated ten years of service with the OSE in September.
Jay Groseclose of the ISC and Eddie Ytuarte of the subdivision review bureau, both received fifteen year awards on their October anniversaries. November marked five years for Water Resource Specialist II Nancy Cunningham in the Albuquerque Office and for the ISC's Bobby Tribble, currently the Costilla Creek Watermaster.
Robert Oxford, in charge of the Aztec Sub-Office, and Barbara Austin, Hydrology's librarian, will both have been with the OSE for ten years in December.
The rest of the staff of the OSE join State Engineer Tom Turney in his expression of appreciation and congratulations to you all!
Thanks to Beverly Leeds for her invaluable assistance in gathering information for Employees in the Spotlight.Lower Rio Grande Criteria in Preparation
Staff of the Water Rights Division are currently working on criteria for administering the Lower Rio Grande Basin. It is anticipated that these criteria will be ready for public review during the first three months of next year. When they are ready, the criteria will be published and public hearings scheduled.
To receive a copy of the proposed criteria and announcement of informal hearing dates when they are released, call Jennie Kirkpatrick of OSE Administrative Services Division at 827-616 in Santa Fe.
Acequia & Community Ditch Fund Committee Meets
Jeffrey T. Pender
The Acequia and Community Ditch Fund committee met in Santa Fe on October 20th to allocate $250,000 among ten acequia associations located across the state to help them defray some of the expenses of participating in the State's water rights adjudications. Officers of several of the largest ditch associations made their final pleas to the committee members in hopes of increasing their allotments. The largest award of $40,000 went to the Rio Pojoaque Acequia and Water Well Association, Inc.
Several meeting attendees suggested that the application forms needed to be amended to reflect more accurately the actual expenses and needs of the ditch associations. The Office of the State Engineer and the Department of Agriculture will work together to develop a more useful application for the next fiscal year.
Acequia associations are encouraged to send their suggestions for changes to the application form to Jeffrey T. Pender, Office of the State Engineer, P.O. Box 25102, Santa Fe, NM 87504-5102.
Hearings
Status of Applications before the Office of the State Engineer That Have Been Assigned to a Hearing OfficerHearing Officer Case Applicant Status
Fred Allen RG-57988 Los Pastores Heard, 3/27-3/28/94| Fred Allen | RG-57125 | Intel | Heard, 8/4-8/11/97 |
| Fred Allen | E-4728-enl. | Independent Utility Co. | Heard, 6/3-6/4/97 |
| Fred Allen | 03525 | Bolander (Sipapu) | Scheduled 3/4-3/6/98 |
| Fred Allen | RG-57197 | P.G. Corporation | Settled |
| Fred Allen | T-32-5-9 | Alamogordo | Settled |
| Fred Allen | RG-6745 et al. | Rio Rancho | Pre-hearing conf 1/23 |
| Fred Allen | LRG-65-T | Organ | Settled |
| Fred Allen | M-5092 | Hanover | Settled |
| Fred Allen | RG-47967 | Hefele | Under negotiation |
| Fred Allen | RG-47303 | Williams | Under negotiation |
| Fred Allen | RG-4851 | American Gypsum | Under negotiation |
| Fred Allen | E-5340; 4859 | Hansen | HE Apptd. |
| Fred Allen | E-5078; 5078-S | Hansen | HE Apptd. |
| Fred Allen | E-2298 | Horton | HE Apptd. |
| Fred Allen | RA-4663 | Chumley | HE Apptd. |
| Fred Allen | T-2202-S-2 | Richard & Tonya Williamson | Pre-hearing conf 1/13 |
| Fred Allen | RG-67921&sup. | Bruce Golden & Assc. | Pre-hearing conf 1/27 |
| Fred Allen | 01006 | Dr. Judith Sauceda | Pre-hearing conf. 2/10 in Taos |
| Calvin Chavez | CC-268 et al. | NM-American Water Co | Scheduled, 2/17/98 |
| Calvin Chavez | 1545 & 1699 into 4675 | Henry G. Coors | Scheduled,1/13-1/14/98 |
| Calvin Chavez | 057 et al. into RG-60885 | Town of Taos | Scheduled, 1/27/-1/28/98 |
| Calvin Chavez | 0980 into RG-53785 | Jeffrey & Jennifer Jacobs | Prehearing conf., 12/97 |
| Robert Rogers | LRG-9356 | Vaskov | Hearing in early 1998 |
| Robert Rogers | G-11 | HRI | Hearing in early 1998 |
The Hearing Calendar of the Winter WaterLine was in error when it reported that the protest of Rio Rancho’s application regarding RG-6745-S-23 through RG-6745-S-34 had been settled---In fact it has been set for a pre-hearing conference on January 23rd at the U.S. Geological Survey Office, Water Resources Division at 4501 Indian School Road NE, Suite 200.
Intel Transfer Denied
Intel's request to transfer 1,148 acre-feet of surface rights from the Valverde ditch, which was destroyed by flood in 1937, was denied by the Office of the State Engineer on November 11th.
The semiconductor manufacturer was given a permit in 1994 to pump nearly 3 million gallons of groundwater a day for its Rio Rancho plant. Because of the connection between the aquifer and the river, Intel's pumping will deplete the Rio Grande. The firm's permit required that Intel offset its impact on the river by acquiring and retiring surface water rights.
"The water rights Intel proposed to retire do not exist except on paper," Turney said. "State statutes require that only valid water rights be used to satisfy wet water demand. To do otherwise would make it impossible to maintain the delicate balance required between actual need and actual supply."
The Valverde Ditch was maintained from 1907 until 1937, when a flood irreparably damaged the irrigation system. Another flood in 1941 forced the few remaining farmers in the area to leave. The New Mexico Taxation and Revenue Department took over ownership of all but one tract of the land under the ditch when farmers failed to pay their taxes. The current owners or their predecessors bought the land from the state between 1953 and 1978.
In 1952 the state granted a permanent easement to the Middle Rio Grande Conservancy District to build the Tiffany Channel, also known as the low-flow conveyance channel. Levees were built, and the river was permanently rerouted over the former farmlands. Aerial photo-graphs taken during the 1953-1992 period show the ditch, the levee and the Rio Grande crossing the lands. The lands have not been irrigated in the past sixty years.
La Joya Acequia Association, Socorro Soil and Water Conservation District, La Joya Mutual Domestic Water Consumer's Association, South West Organizing Project, La Acequia Madre de Las Vegas, and Robert Roibal filed protests based on the proposed transfer's impact on the public welfare. The decision, however, did not rely on the public welfare argument. The application was denied because the water right was no longer valid.
ISC Awards Regional Water Planning Grants
At its October 28th meeting in Santa Fe, the Interstate Stream Commission divided up the $200,000 provided by the Legislature for regional water planning.
Two awards were given to regions well into the planning process to complete their plans. Pecos Valley received $50,000 and McKinley County $30,000.
Eastern Plains Council of Governments was given $20,000 to establish a well-monitoring program. Santa Fe received $20,000 for a public participation program. Eight Northern Pueblos received $20,000 and Lea County, which has conducted some initial stages of its water plan, received $35,000.
The State Engineer Water Conservation Program received $20,000. Five thousand was reserved for statewide planning, and will probably be used through the New Mexico Water Dialogue for public information activities.
Other Newsletters
There are many sources of information about western water issues, including a number of excellent free newsletters. A postcard or an e-mail will get you a subscription to these:
Divining Rod
Transboundary Resources Report
International Transboundary Resources Center
The University of New Mexico School of Law
1117 Stanford NE Albuquerque, NM 87131-1430
Circulation, Barbara Jacques
Published three times a year. Focuses on US-Mexico transboundary resources, with abstracts of research and talks.
Water on the World Wide Web
If you like your news and education electronic, try these:
Groundwater Foundation, http://www.groundwater.orgWater Forums, 1998
February 1-3
February 7-9
March 20-24
April 28-30
May 3-6