OSE weighs motion to dismiss San Augustin water claim

February 9, 2012

By Jack King

An audience of farmers, ranchers and small landowners packed a Socorro County courtroom Feb. 7 to hear attorneys’ arguments on a motion to dismiss an application by the owners of the Augustin Plains Ranch in Socorro and Catron counties. The owners propose to pump 17.5 billion gallons of water a year from the San Augustin Basin, then pipe most of it to the Rio Grande for a laundry list of uses elsewhere in the state.

New Mexico Environmental Law Center attorney Bruce Frederick, who represents about 80 area residents who oppose the application, said 17.5 billion gallons is about the amount of water the city of Albuquerque consumes in a year.

Those opposing the application have waited for action from the Office of the State Engineer since February 2011, when the motions to deny it were first filed, and they will now need to wait a little longer for a decision that will apparently be made by newly appointed State Engineer Scott Verhines.

Once arguments for both sides were finished, OSE Hearing Examiner Andrew Core told the crowd that, while he and fellow Hearing Examiner Uday Joshi would file a report on the hearing, the state engineer himself would make the final decision on dismissing the application.  Core said he hoped to “have that out fairly soon.”

In an amended application filed in 2008, the ranch’s representatives check off the water’s proposed uses as “domestic, livestock, irrigation, municipal, industrial, commercial and other.”  In an attachment, they explain, “The purpose of this Amended Application is to provide water by pipeline to supplement or offset the effects of existing uses and for new uses in the areas designated in Attachment B.”

The “areas designated in Attachment B” are the ranch itself, as well as those parts of Catron, Sierra, Socorro, Valencia, Bernalillo, Sandoval and Santa Fe counties within the boundaries of the Rio Grande Basin.

Frederick told the hearing examiner the OSE shouldn’t even consider the application, since it is too broad and violates state statutes that require applicants to be specific about a water right’s purpose and place of use.  He said the ranch is attempting to speculate in water.

“The ranch’s desire to exploit a free public resource for private profit is nothing new.  The courts have consistently held that speculation in public water harms the public and conflicts with the [state] law of prior appropriation,” he said.

Stephen Hernandez, attorney for the Middle Rio Grande Conservancy District, which opposes the application, said accepting the application would set a precedent—a very bad one.

If the application is allowed, every lawyer filing a water rights application from now on will do as the ranch’s lawyers had done and check every box on the application, according to Hernandez.  Besides violating state law, this would effectively block any other water rights applications in the same basins, he added. The OSE’s Water Rights Division would hold off accepting any new applications until the overbearing one was approved or denied, Hernandez said.

“Applicants will lock up basins for years,” he said after the hearing.

But, John Draper, the ranch’s attorney, said no statute limits the number of uses an applicant can list or specifies only a small area of use.  The opposing attorneys were just trying to deny the application a chance to be heard on its merits, he said.

“This represents an effort by private enterprise to bring water to an area of the Rio Grande Basin that has an ever-increasing need for water.  If you find their [opponents’] arguments are acceptable in this case, you’re essentially excluding free enterprise,” he said.

Catron County resident Monte Edwards told the hearing examiner the ranch’s application represents a threat to the small homestead he and his wife maintain outside of Datil.

“Based on the little bit of water I have, there’s no study anywhere that shows my water wouldn’t disappear if that amount of water were pulled out of the ground,” he said.

One Response to OSE weighs motion to dismiss San Augustin water claim

  1. Carol Pittman on February 10, 2012 at 3:23 pm

    Mr. King has done an excellent job of telling the story of the hearing in a comprehensive, understandable way.

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