A dispute over millions of dollars’ worth of water rights in the Questa area may be nearing resolution. Or, it could be edging closer to litigation.
“The process is not stuck anymore,” Christian Isely, state government affairs representative for Chevron in New Mexico, said recently. “We’re hoping for a resolution in the coming months.”
Things got stuck when Chevron Mining, Inc., which owns the shuttered molybdenum mine along NM 38 east of Questa, moved to offload a total of 7 acre-feet of water rights in two transactions a couple of years ago. The Office of the State Engineer rejected the applications, indicating the 7 acre-feet — plus another 1,426 acre-feet of water rights — were invalid.
An acre-foot of water — an acre with 12 inches of water on top of it — is equal to roughly 325,000 gallons, enough water to supply almost 4,000 Americans the water they use on a typical day, according to the U.S. Environmental Protection Agency. According to Isely, the market value of an acre-foot of water right in Taos County is currently around $16,000.
But if a water right isn’t put to “beneficial use” for four consecutive years, according to state law, it is forfeited.
“They did not use that water,” Ramona Martinez, district manager for the Office of the State Engineer’s Water Rights District 6, told The Taos News in July of last year, emphasizing that the water rights are what ceased to exist. “It’s not that the water doesn’t exist in the hydrologic system; the point is whether or not Chevron has the right to use [or sell] that water.”
Chevron invoked a provision in the law that excludes forfeiture if the non-use was due to circumstances beyond the rights-holder’s control. Both chambers of the state Legislature adopted memorials earlier this year encouraging the Office of the State Engineer to collaborate with Chevron on an “action plan” to support the mine remediation work, “while concurrently enabling the divestment of former Questa mine water rights.”
“Chevron and the Office of State Engineer are now working together to finalize plans for existing and future Questa Superfund Site water uses,” Isely said in a statement to The Taos News, adding that the company “is encouraged by this development as it supports implementation of Senate Memorial 69 and House Memorial 84.”
But if Chevron isn’t satisfied with the outcome of the current talks, Isely indicated the company may well take its case before the 8th Judicial District Court in Taos.
“The OSE prefers to settle conflicts about water rights without litigation,” John Romero, director of the state Water Resources Allocation Program, told The Taos News. “We are looking forward to sitting down with Chevron to try to resolve this dispute based on the relevant facts and data.”
With its purchase of Unocal in 2005, Chevron acquired 3,360 acre-feet of water rights and swaths of land acquired by the mine’s former owner. After the mine closed in 2014, Chevron said it would only need a portion of its total water rights to complete mandatory reclamation work at the site. It announced it had reserved 133 acre-feet to sell to nearly a dozen Taos-area drinking water associations that serve growing populations and help them meet the terms of the Abeyta Settlement.
It has also pledged to donate 120 acre-feet to the village, while other water “would be made available to Questa, the Questa Economic Development Fund and local acequias,” according to a presentation delivered at the Chevron Mine headquarters before the recent tour, which was attended by representatives from the development fund, Trout Unlimited, the Questa Citizens Ditch Association and two Taos-area domestic water associations.
Andrew Chavez, treasurer of El Valle de Los Ranchos Water and Sanitation District, said he thinks the small but critically important mutual domestics and sanitation districts are being used as pawns in Chevron’s fight with the state over its water rights. And he’s OK with it.
Chevron has said the state’s declaration that 1,433 acre-feet of water rights were invalid forced it to suspend plans to sell the 133 acre-feet of uncontested water rights it had promised to small water associations, as well as contested water rights it had promised to Questa and two individuals with plans to either expand or start small local businesses.
Reclamation at the former mine, a Superfund site where dust control and other needs in the coming decades will require large amounts of water, requiring significant portions of the mine’s valid water rights. The cleanup cost is expected to top $1 billion.
He hopes sympathy for the underdog will help Chevron’s case, “not only because we want the 133 [acre-feet of water], but because I want that water not to disappear.”
“On paper, the water’s not going anywhere, but when you’re not allowed to use 1,433 up here, they are going someplace else,” he said. “The water is continuously flowing down not only the river, but below the river.”
“All those 1,433 acre-feet of water? Somebody’s going to use ‘em; the state engineer on a daily basis is approving [residential] wells,” for example, Chavez said. “Those wells don’t need [existing] water rights; he is required by law to assign an acre-foot to you if you want to drill a well. Eventually, when he assigns 1,433 well permits, there goes the water. And if not, communities lower than us are always going to be wanting water, just like we are.”
John Painter, who co-founded and sits on the board of El Prado Water and Sanitation District, echoed Chavez’s sentiment.
“I think it’s extremely important that these water rights stay in Taos County forever,” he said.
By Geoffrey Plant
The Taos News