The city of Española has hit a snag in its plans to purchase about five acre feet of surface-water rights within the Santa Cruz Irrigation District.
The city had planned to use those rights to offset increased well-water usage in a planned pipeline to homes in Sombrillo, Cuarteles, La Puebla and Arroyo Seco. But District Chairman Kenny Salazar said he’s opposed to converting acequia irrigation rights for domestic usage.
“Should the acequias approve it — the transfer — then I would protest it as the District,” Salazar said.
Salazar, one of three elected Board members for the District, said no one can prevent the actual sale of water rights from a seller to a buyer — in this case, from three individual parciantes to the city. But each acequia (there are 33 within the District) has the legal authority to approve or deny the transfer or conversion of those rights out of the ditch. It’s a relatively new authority, and it’s already being challenged in places such as Hernandez and Ojo Caliente, where Española businessman Richard Cook has taken two acequia associations to state District Court to fight their rejection of his water rights transfer.
What hasn’t been addressed is what role an irrigation district might play. Salazar said the District’s function is to take care of the Santa Cruz Dam and the various headgates that distribute water among member ditches. He doesn’t know whether the District could overrule an individual acequia’s transfer decision, he said. But the transfer application would come before the District Board before heading to the State Engineer’s office, Salazar said.
“Can an irrigation district overrule an individual acequia in the district and stop a water-right transfer?,” Salazar said. “I don’t know.”
Hilario Rubio, acequia liaison for the State Engineer’s office, said he’s not a lawyer but he’s familiar with the 2003 state law that gave acequias the legal authority to rule on water-rights transfers — provided they adopt certain language in their by-laws. That law applies exclusively to acequias, and makes no mention of irrigation districts, Rubio said.
“I just didn’t see anything giving irrigation districts authority,” Rubio said.
Of course, that doesn’t mean they can’t try to exercise authority. Rubio said the State Engineer’s office would not get involved in such questions.
But it may not have to go that far — city Water Department Director Marvin Martinez said the purchase is essentially on hold now that a protest is in the works. Martinez said that’s unfortunate, because city ownership of unused water rights would prevent them from reverting to the state, which can happen after four years. The city could bank new rights for up to a decade, Martinez said.
Martinez also said the three sellers — Ted Pacheco, on the El Llano ditch, Dr. Michael Dondelinger, on the Santa Cruz ditch, and Michael Redman, on the Garcia ditch — came to him of their own accord.
Redman said he sold his real property on the Garcia ditch in 2001, and has been holding on to the water rights ever since.
“You’re paying ditch fees and you have nothing to show for it,” Redman said.
Redman said he read in the SUN that another District parciante, Lindy Akes, had sold his water rights to the city, so he offered to sell his as well. But commissioners on the Garcia ditch have already told him they won’t approve the city’s transfer application, so the sale has stalled, Redman said.
Redman said he’s now looking for other buyers.
“I one time talked to the Santa Cruz Irrigation District, and their problem is they don’t have any money,” Redman said.
Santa Cruz ditch commissioner Joe Merhege, a former city councilor, said he won’t make a decision on the issue until the transfer application goes through the complete, state-mandated process. That includes a formal public hearing and a written decision issued by the three ditch commissioners.
Redman said on his ditch, the main issue seems to be whether the water rights will be leaving the District.
Martinez said Cuatro Villas, the domestic water association that stands to benefit from the city’s planned pipeline and water-rights offset, lies entirely within the District.
“It’s strange that the Santa Cruz Irrigation District is going to be going against the people that they serve,” Martinez said.
But Salazar said that’s the dispute, in a nutshell — the city thinks it’s keeping the water within the District, while he thinks it’s being transferred out.
“You’re putting it underground, you’re going to pump it, so to me that’s taking it out of the District,” Salazar said.
The city will bank the water rights that it bought from Akes earlier this year, Martinez said.
Misunderstandings
Salazar said he understands that the city and surrounding communities need water, and he was willing to work with them to reach an agreement.
Toward that end, he attended a meeting last spring with Española Mayor Joseph Maestas, former city manager Gus Cordova and Martinez. Salazar said they discussed drafting a written agreement laying out exactly how much water the city could convert into well-water offsets. The parties verbally agreed to a second meeting where contracts would be drawn up in the presence of someone from the state engineer’s office, Salazar said. Specifically, they discussed a deal to lease, sell or use water from the District’s water bank, Salazar said.
But that second meeting never happened.
“In the meantime, while we were waiting for that meeting, the city announced that they were going to buy more water, and they had said they were going to do a moratorium and wait until we had an agreement,” Salazar said. “They didn’t hold true to what they said, so they got me mad.”
Martinez disputes that account. He said he remembers reaching a verbal agreement that the city would bank existing rights and take up discussions about diversion in the future.
“It’s a give-and-take situation,” Martinez said.
Martinez said in the end, Santa Cruz surface-water rights are not the city’s only option — there are rights available within other ditches off the Rio Grande, he said.