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Wells get more scrutiny

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DPU > Utility gets direction on next steps

By Arin McKenna

The San Juan/Chama Water Project was the major topic of discussion during a five-hour Los Alamos County Council meeting Tuesday. Most councilors reached consensus that building infrastructure to secure the county’s water rights was critical, but directed the Department of Public Utilities to explore additional options for developing the project.

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DPU Senior Engineer Jack Richardson briefed council on why the San Juan/Chama water rights should be secured and why — despite protests by nearby residents — Alternative 5 (digging one to three wells in White Rock) is still considered the best alternative.

Attorneys then weighed in on the legal issues.

“Even though the county’s contract with the federal government is not listed as a perpetual contract, it probably is a perpetual right once the county finishes its payoff in a couple of years,” said County Attorney Rebecca Ehler.

Ehler admitted there was some risk of losing the rights, but based on federal agency postures and a court ruling regarding the Rio Grande silvery minnow, “The county’s right is pretty secure at this point. It’s a risk I’d be willing to bet on,” Ehler told councilors.

Ehler based her opinion on the advice of two water rights attorneys. One of those attorneys, Galen Buller of Montgomery and Andrews Law Firm, answered council’s questions at length.

Buller has specialized in water rights for 30 years and is familiar with the Buckman Direct Diversion Project through serving as division director of Santa Fe’s Sangre de Cristo Water for eight years and as Santa Fe city manager.

Buller stressed that the county is showing beneficial use of its allotment (a key factor in securing water rights) by leasing the water for release into the Rio Grande to protect the silvery minnow. Buller said the county is further protected by having a 40-year plan for utilizing the allotment.

Councilors were not reassured that those measures would protect the county in the future.

“We are in a long-term drought situation. There are uncertainties about future access to any water rights. There are political uncertainties that may not be apparent to us now. Water is certainly going to be an issue in this 40-year time frame,” Councilor David Izraelevitz said, noting that “beneficial use” would be lost if the silvery minnow became extinct.

If that were to happen, the county would have at least five years to develop an alternative plan. Four years without beneficial use amounts to forfeiture of rights under water law, but the State engineer must then give one year’s notice before revoking those rights.

Councilor Pete Sheehey suggested that because of this issue, the county should delay developing its San Juan/Chama allotment for at least five years. Others were not so sanguine.

“It may be true we don’t have an urgent issue today, but I don’t want to get us to the point where suddenly we’re in that five-year option where we have to do something right away,” Councilor Kristin Henderson said.

Buller also said that as a former city manager he would agree with that.

“Water in the Rio Grande is not as available now as it was 20 years ago, and it may not be as available 20 years from now as it is today,” Buller said. “Legally, you might have the 40 years, but as a policy manager you need to think about what you want to do.”

Councilor Frances Berting, who is strongly opposed to Alternative 5, advocated for finding out whether the county’s 1,200-acre feet San Juan/Chama water rights could be exchanged for additional ground water rights.

Buller said that might be a possibility, but it was complicated by the interaction between federal law regulating the San Juan water and state law regulating ground water. The San Juan/Chama right requires the diversion of surface water.

Buller suggested seeking a legal opinion, but warned, “The Rio Grande basin is fully appropriated, and the state engineer takes the position that you can’t get a new appropriation on a fully appropriated basin.”

Buller said the county could try purchasing water rights from another entity and transferring them here, but the state engineer would have to analyze whether increasing the county’s ground water allotment would impair the aquifer.

Council directed DPU to seek a legal opinion on that option before moving forward with Alternative 5.

Council also directed DPU to open discussions with the Department of Energy about the feasibility of placing the wells on DOE land (Alternative 6). DPU estimates that alternative would add approximately $9 million to the cost of the project and have a much greater impact on open space.

Richardson pointed out that developing the San Juan water allotment would not only secure the water rights but would begin the process of replacing the county’s existing wells. One well is currently deteriorating, and the lifespan of other wells built at the same time is uncertain.

Council directed DPU to move forward with replacing the failing well (approximately $2 million), which would provide time to study the possibility of obtaining ground water rights in lieu of the San Juan/Chama rights and to initiate discussions with the DOE.

Council also approved a DPU proposal to initiate the Environmental Review Process on Alternative 5, as long as the review included alternative 6. The county will have to obtain permission from DOE to conduct such a study before it can move forward.

Although some public comment urged the county to move forward with securing its water rights, most came from residents who would be directly affected by the construction and possibly the wells’ operation (up to 33 homes).

Their comments echoed those made at previous public meetings and were generally opposed to any consideration of Alternative 5.