A 10-year long legal battle over water for a huge proposed development ended this week when a judge said the water appropriation would impact about 100 nearby wells, denying the appeal of Aquifer Science.
That development is the nearly 20-year old Campbell Ranch Master Plan approved by Edgewood shortly after its 1999 incorporation as a town. The development had been rejected by Bernalillo County.
The development proposed to incorporate parts of Bernalillo, Sandoval and Santa Fe counties; Edgewood annexed about 19,000 acres, around 8,000 of which comprise the Master Plan.
The Master Plan calls for four villages, including two golf courses, about 4,000 homes, a commercial area, recreational areas and open space.
Development has been held up for about 20 years as the parties—in complex and interwoven legal battles—have wrangled over the availability of water for the proposed phased build-out.
The gist of the latest decision, a denial of an appeal by Aquifer Science, was that the applicant had not properly predicted the effect on nearby wells, and doesn’t take conservation or climate change into account.
“Aquifer Science’s Application is denied because the magnitude of the impairment to existing water rights is significant,” District Judge Shannon Bacon wrote.
Kathy McCoy, a former state legislator and one of the protestants to the case, said that the Master Plan development could have gotten water from Entranosa at any point, calling Aquifer Science a “water speculator.”
McCoy said she is not opposed to development of the area, but said that the scale of the Master Plan would change the East Mountains totally. “We have never, and we’ve emphasized this over and over, had any objection to development there. I can’t state that more strongly,” she said. “What we objected to was 4,000 homes, two new golf courses, commercial properties—without any obvious way of getting that done.”
McCoy and others formed a group called Deep Well Protest, which partnered with the San Pedro Creek Estates homeowners’ association, raising about $800,000 for the legal battle, employing the New Mexico Environmental Law Center to fight Aquifer Science and its parent company, Vidler Water.
The Law Center’s executive director, Douglas Meiklejohn, said in a press release, “This case shows that community involvement and support is essential to protecting New Mexico’s water and environment. The Law Center is proud to have supported this case from the beginning.”
Bernalillo County was another protestant in the case, and installed monitoring wells nearby that allowed experts in the case to compare predictions with data on water drawdowns as wells were tested.
The case drew more than 100 protestants, including individuals, neighborhood associations and the county, as named on the court filing.
Over the years, Aquifer Science had reduced its water appropriation request from 1,500 acre-feet a year initially to 350 acre-feet a year.
The company also drilled a well to about 3,600 feet, which was determined not to produce potable water.
Most of the 63-page Findings of Fact and Conclusions of Law in the case talk about methods used to model the impact on nearby water rights and San Pedro Creek.
The crux of the judge’s denial was that Aquifer Science applied a standard intended for “thick alluvial aquifers” to a “thin alluvial aquifer.”
“For thick alluvial aquifers, the Morrison 2006 Guidelines allow a 10 foot drawdown allowance; for thin alluvial aquifers only a 2-4 foot drawdown allowance is allowed,” the judge wrote. By applying the standard for thin aquifers, more than 100 nearby wells would be impacted, the document says.
The judge also took issue with Aquifer Science’s plan to use potable water on the two golf courses until Village 1—located in Bernalillo County—would have been built out. “Both the drawdown to the creek and the ability to replenish the flow are premised on the full implementation of the Master Plan, which includes Village 1,” the document says. “Village 1 has not been annexed and has not been approved by Bernalillo County.”
The phased development as proposed would start with Villages 2, 3 and 4, ending with Village 1.
Aquifer Science intended to start development with two golf courses “because it is a site for storing and applying treated effluent as the Project progresses,” the document says. The company also said it would use high-efficiency appliances and low water use landscaping.
The court document said Aquifer Science didn’t take climate change into account. “During the periods of episodic drought, the effect of increasing temperatures is to greatly increase the evaporative rate which exacerbates the kinds of drought that have been occurring for millennia in this region,” it says, adding, “Snowpack and runoff in the Sandia Mountains will decrease, and both evaporation and evapotranspiration will increase as temperatures rise.”
The judge also said the town of Edgewood’s ordinances “are insufficient to enforce actual implementations of the water use assumptions presented by Aquifer Science in this matter.”
Edgewood’s planning and zoning administrator, Tawnya Mortensen, said the town has made its standard higher in the intervening years, pointing out that the ordinance in place when the Master Plan was approved is what governs in this case.
McCoy said she is working with state legislators on a bill “that we’re hoping would address this problem” by specifically addressing water speculation, borrowing strict language from Colorado water law.
“It should be bipartisan,” McCoy said. “This has no party element to it. It has to do with protecting the state’s water.”
Neither Aquifer Science nor Campbell Ranch could be reached for comment to this story.