Taos residents say State Engineer slow to address water diversions

Aug. 3—Taos-area residents and acequia advocates feel the New Mexico Office of the State Engineer has turned a blind eye to what they say is illegal use of water from a high mountain stream that feeds in the Rio Hondo and surrounding irrigation systems.

Lobo Creek, a tributary that carries water from the Lobo Peak watershed, is supposed to flow into the Hondo and three area ditches, replenishing local wells and aquifers along the way. But, downstream water users say, the water is being illegally diverted by people at the top preventing it from flowing where it normally would.

Not only is the water being held hostage, they say, it's being put to domestic use — not its intended purpose — setting a dangerous precedent for future and ongoing water disputes in the Taos Valley.

State officials initially seemed to listen to their concerns and even indicated the state would install gauges to determine how much water was being used by individual water rights owners in the disputed area. But, they said, officials from the agency since appear to have reversed course and communication has been sparse.

"It's been so frustrating to have to keep bugging and bugging them about it and then they get angry because we are bugging them about it," New Mexico Acequia Association Vice Chair Judy Torres said in a telephone interview Friday.

Leandro Ortiz, president and mayordomo of the Acequia Madre del Llano and one of several people who have filed complaints over the issue, likened the dispute to the archetypal water war between local farmers and big-city developers chronicled in the novel and later movie The Milagro Beanfield War.

"They took advantage of my ancestors because they didn't know how to write and read and the ones that did were sellouts," Ortiz, whose family has irrigated in the region for more than 100 years, said in a phone interview. "Then comes people like me that are educated and understand the laws and they don't like it."

Mark Donner, a longtime area resident and one of several upstream water rights holders whose use of the water has been questioned, says all of his water use and diversion from Lobo Creek is legal. The dispute, he said, is being fueled by people who don't know what they're talking about, including one who is simply jealous because she doesn't have water rights of her own.

"No one ever really thought about any of this stuff until it was brought to their attention by someone that doesn't have water rights," Donner said in a phone interview Friday. "So they have all gotten up in arms, with constant prodding that their water has been stolen from them."

Donner admits he installed new piping in 2018 but said it only captures water that was being wasted by being run through a "leaky ditch." He said there isn't enough water in the ditch even in good years for it to make it to water users lower down.

The person Donner says has riled up other residents is Audra Scully, a downstream resident who, along with Ortiz, has filed complaints about what she says is illegal diversion and use of the water from Lobo Creek.

Scully said in emails and phone interviews this week that Lobo Creek used to run through her property — which her father bought in 1988 — but stopped after Donner made changes in 2018. The last time she saw it running was in 2019.

In 2020, she called the State Engineer's Office because she didn't understand why the water wasn't flowing anymore and thought it must have something to do with new infrastructure Donner had installed.

What followed, she said was a frustrating four years of back and forth but little action.

Scully said officials from the State Engineer's Office have offered shifting opinions about whether Donner and other upstream users are in compliance with their permitted water rights and whether the state plans to do anything about it.

Meanwhile, she said her well began struggling.

In January 2021, Scully said, she got a call from Ramona Martinez, a manager in the State Engineer's Office who told her the agency would look into it. However, a month or so later she said, she got a letter from the office's lawyer telling her there was no evidence of illegal diversion of water and "there was nothing they could do."

Scully and Ortiz — representing the Acequia Madre del Llano — filed a complaint in June 2022. The state engineer replied with a letter saying the office was investigating and would install temporary measurement devices at various points near the disputed diversion.

But that never happened.

At one point, Scully said, the State Engineer's Office indicated it would ask Donner and another upstream user using water earmarked for irrigation domestically to apply for change-of-use permits, but the office later changed its position and didn't require the permits.

The State Engineer's Office provided a letter Friday that it sent to the New Mexico Acequia Association in 2022 discussing the permitting changes but it was unclear whether the changes had been enforced.

In December 2022, Scully said, her well ran dry.

In 2023, then-New Mexico Acequia Commission Chairman Ralph Vigil sent a letter to the Office of the State Engineer asking it to investigate.

"We are requesting a site visit of all points of diversion located on and off the National Forest, to identify areas of diversion to un-adjudicated areas and to ensure removal of illegal points of diversions. Inspection should also include Donner property to fully investigate his pond/outflow piping," Vigil wrote.

Vigil said in a phone interview Friday it was "very difficult getting a response from the State Engineer." Finally, he said, he asked to meet with former State Engineer Mike Hamman in the spring of 2024. Hamman said he would appoint someone to look into the matter.

Vigil and Hamman both left their posts not long after the meeting.

Martinez, manager of State Engineer District VI, wrote the Acequia Association a letter on April 25 outlining the state's efforts to investigate.

According to the letter, the state asked one upstream water user to "cease and desist" an unpermitted impoundment pond on her property in 2022 and followed up in 2024, "giving her another 60 days to come into compliance." That was still pending as of April 25, the letter said.

"This is the only unpermitted diversion that OSE's investigations have uncovered," according to the letter.

As for alleged illegal domestic water use and over-diversion into a pond on the Donner property, the State Engineer's 2024 letter pointed to a 2022 letter that said Donner had been issued a domestic well permit and had filed an application "to include domestic use" in his water rights.

It was unclear Friday whether those changes had been finalized.

The 2022 letter said the agency had considered installing measuring devices but decided against it.

"The data produced would not be suitable or practical given the intricacies of the system nor would such measurements provide the level of hydrologic data required to determine impacts to a tributary of the Rio Hondo," the letter said.

Martinez did respond to messages seeking comment last week.

Lorinda Teter whose family has been farming in the region for generations and owns hundreds of acres irrigated with water from local acequias, said she's disappointed in the state's response.

"[Donner] does have water rights and he does have irrigation water rights so we aren't not disputing that but there is no method of measurement to determine if he is only utilizing his allowable amount," she said.

Lorinda's mother, Fabiloa Teter, who is in her 80s, said cooperation among water users will be needed to ensure the health of the area's water supply in the future.

"We're either friends of the watershed or we are enemies of the watershed, and if we are enemies of the watershed we better fast become friends of the watershed," she said. "If we don't, there won't be any watershed and there won't be any water for any of us."

"It's important to take care of what we are blessed to have," she added. "And if our protective agencies are not doing what they need to do to ensure and enforce the water laws like they should be, then we are going to have a problem."