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Water Heist in the Plains of San Augustin
The Plains of San Augustin—a vast graben that spans the Continental Divide, a grassland surrounded by pine-forested mountains, was once a great lake whose waters disappeared at the end of the Pleistocene, the last ice age that ended around 12,000 years ago when mammoths, dire wolves, and even horses that had roamed the Southwest for millennia were slowly chased into extinction by climate change and early human hunters.
Within today’s ephemeral geopolitical context, the Plains of San Augustin are contained within western Socorro and eastern Catron Counties of southwestern New Mexico. Near the south end of this enormous dry lakebed, the surface of which extends to nearly a mile and a half above sea-level, is Bat Cave, a site of early human habitation whose middens revealed corn cobs of different sizes and periods that give some idea as to just how deep into antiquity maize was harvested and consumed in southwestern North America. Bat Cave is thought to have been inhabited by humans of the Cochise culture at least five thousand years ago, and possibly earlier. These hunter-gatherers left remnants of their passage around the area in other sites as well, especially in nearby mountains about twenty-five miles due west of Bat Cave.
Thirty years ago, I camped at Bat Cave with my old pal, Michael Harner, who had been an undergraduate in 1948 when he was a member of the archaeological team headed by Herbert Dick who excavated the site, and found the corncobs that chronologically placed southwestern maize within time’s continuum. Those young archaeologist-anthropologists missed an arrowhead that I found, which now lies before me as I write, a treasured artifact that connects me, somehow to a fellow human who preceded me by a hundred generations, someone who worked very hard to survive, and whose consciousness was still wild, unencumbered by the technofantasy that dominates today’s Western culture.
Sitting at dawn in the entrance to Bat Cave, I looked out over the Plains of San Augustin, a beautiful habitat that I have loved for nearly fifty years, since before the arrival of the Very Large Array (VLA) of radio telescopes constructed by the National Observatory to use the heart of this enormous natural parabola as the place from which to observe cosmological phenomena in the firmament. This VLA is one of humankind’s highest technical applications of modern scientific consciousness—listening to the cosmos, finding echoes of the Big Bang that ushered our universe into being over thirteen billion years ago.
Scattered around the Plains of Saint Augustine are cattle ranches run by a curious breed of true individuals who prefer to govern their lives as they see fit through hard work and John Wayne-ian true grit. They prefer to be left alone in this enormous span of grassland that elicits fits of agoraphobia in visiting urbanites who happen to be driving from Magdalena to Datil. This is indeed a habitat perfectly suited to itself, a biotic community contained within a geophysical cradle sculpted by volcanic activity with an ancient tectonic nudge that resulted in an exquisitely defined watershed that apparently drains to either side of the Continental Divide. Both the Río Grande to the east and the Gila River to the west are fed by waters from the San Augustin aquifer.
Today, a family of speculators is seeking legal right to drill thirty-seven wells deep into the San Augustin aquifer and pump 54,000 acre feet of water per year for 300 years, or until the aquifer runs dry, for undetermined purposes other than to sell this water to the highest bidder. Or, put another way, a family of modern-day carpetbaggers wants to pump the lifeblood of a living bioregion, create a water hemorrhage with no thought of tourniquet, despoil a vibrant habitat, rape the Earth—for money, lots of money to satisfy the insidious greed that has come to dominate so much of the darkening consciousness of Western culture. The privatization of common waters for profit is absolutely unethical.
The local population is aghast at the evil frivolity being visited upon them by a neighbor who acquired a ranch two decades past, for the sole purpose of reaping vast profit at the expense of habitat, of common waters, of a watershed held in common by the human population as well as the rest of the inhabiting biotic community—a watershed that contributes to both the already over-allocated Río Grande and Gila River, the lifeblood of the O’odham Nation and various riverine communities that it nurtures in both New Mexico and Arizona before it empties into the Colorado River in Yuma hundreds of miles west of its headwaters near Silver City.
Bruce Frederick, an attorney with the New Mexico Environmental Law Center in Santa Fe who also holds a Masters degree in hydrology from New Mexico Tech in Socorro, is representing the inhabitants of the Plains of San Augustin with the intention of thwarting this debacle. I conducted a recorded interview with him, included here in its entirety that portrays the nature of water law in the West.
BF: “From a Western water law perspective, where the Prior Appropriation Doctrine grew up around miners, the ‘forty-niners’ really, the practice they had was to divert water from a stream and take as much they needed for their particular mining practices, and they would leave the rest in the river for the next person to use. Obviously, if the first person who arrived dammed up the entire river, and sold it to everybody else, he obviously would have been lynched. So for the last 150 years, essentially, that’s been the law. The law of prior appropriation in all Western states written into their constitutions is the beneficial use — the basis, the measure, and the limit of the right to use water.
“Before the state engineer was invented in 1907, essentially, you established a water right by actually taking water out of the stream, diverting it out of the stream and applying it to beneficial use. So everyone around you could see how you were using the water. The state engineer started the application process in 1907, but the concept is still the same — the basis, the measure, and the limit of the right to use water. But now you file an application first and then the state engineer determines whether there is any water — called un-appropriated water — available, and whether your new use is going to impair existing water rights. He should also look at your application — and this is clear in other states that are well developed, particularly in Colorado—to see if your intended use is speculative. It’s one thing if you intend to use the water yourself on your land, say for irrigation or domestic purposes. That’s very easily quantified. So we can tie what you want to use the water for with how much you’re applying for, and put the two together to see if they are reasonable. So historically what an applicant does is – say they have a particular use in mind at a particular place– they ask for a particular amount of water. Then the state engineer can assess the amount they’re asking for, and measure that against the water needed for their anticipated use.
“The San Augustin application turns that whole concept on its head. Instead of looking at a particular use, what they’re doing is looking at a basin, an enormous basin with potentially lots of water, and they’re saying, ‘We think there is enough there to take 54,000 acre feet of water per year for 300 years until we drain it dry, and we want it all. We don’t want it for our own use. We want to sell it to third parties.’ And there are people they haven’t identified… the highest bidder. They want to sell it to the state if the state has trouble complying with its Compact. Well the state has protested the application.
“They (applicants) want to offset diversions, for example Río Rancho hundreds of miles upstream — the idea is that if Río Rancho pumps groundwater, eventually that’s going to deplete flows into the Río Grande because the groundwater’s connected to the surface water. And because the Río Grande is fully appropriated, Río Rancho can’t do that unless they either buy up surface rights, or find some source and dump that into the river. That’s the role that San Augustin says they might want to play.
“Of course there’s a big disconnect between where Río Rancho’s depletions occur, hundreds of miles upstream, and where San Augustin will pipe water into the river from groundwater. It’s also somewhat absurd because the San Augustin Basin, pumping that much water will eventually deplete the Río Grande, because it’s connected to the Río Grande via the Alamosa Creek, which is spring-fed creek which drains into the Río Grande, and those springs are fed by the San Agustin aquifer, we think. The San Augustin aquifer also drains into the Gila Basin and eventually ends up as surface flows in the Gila. Pumping that much water out of the Augustin (Basin) will eventually deplete flows in the Gila River and deplete flows into the Río Grande.
“Those are issues of fact. We’re going to contest this application on the anti-speculation doctrine. Our position is that this application is invalid on its face because neither the state engineer, nor the people with existing water rights…can tell when this water will be taken out of the aquifer, where it’s going to be used, how much return flow there might be, or anything else. We’re saying that the application is invalid on its face for that reason.
“The Augustin Plains Ranch, or APR as it’s sometimes referred to, is a New Mexico corporation owned by foreign investors, as far as we can tell. One in particular is an Italian speculator—somewhat mysterious—named Bruno Modena. His son might be involved in this as well. His name is Vito. Bruno may be a holocaust survivor. He’s Italian. …He’s apparently a wealthy person. …He’s proposing a lot of speculative things, and nobody knows for sure who he is and what he wants to do.
“Anyway, APR has owned thousands of acres of land out there in the San Augustin Plains for about 20 years. Whether they bought this land purely for its own value, or whether they had this intention all along, we don’t know. The ranch is an active ranch, apparently. There’s no irrigation on that ranch as far as I know. Now, after 20 years, they’re saying that they want to irrigate 4000 acres of high desert land. We don’t know if they really have plans to do that or not.
“It’s about 20 miles east of Datil. The Very Large Array (VLA) is close to it. They are protesters in the case. Pueblos have protested it, federal agencies have protested it, state agencies have protested it, numerous individuals have protested it. The Middle Río Grande Conservancy District has protested it. The original application and the amended application together drew about a thousand protests… As far as I know, it’s the most protested application in the history of the state engineer’s office.
“It would be unconstitutional, I think, because one of the fundamental tenets in prior appropriation doctrine is that you put water to beneficial use after you apply, and there’s no way to determine when, if ever, this water would be put to beneficial use. It’s entirely speculative. We can assume that in a hundred years, we’ll be more desperate for water than we are now. We can assume that an individual, or a group of investors would like to corner the market on water. And that’s what they’re trying to do, essentially, to corner the market on water in this particular area. It’s unethical, and in this case it’s unconstitutional. You can’t use water in the West for speculative purposes like that. It’s for use, not for speculation.”
Carol and Ray Pittman are residents of Catron County. In an interview, Mrs. Pittman told of how several residents happened to read legal notices in late 2007 that mentioned the application to pump 54,000 acre feet per year from the Plains of San Augustin Aquifer. A meeting was held that drew over 400 residents. They formed the San Augustin Water Coalition. An excerpt from the Coalition overview published in February 2009 reveals: “At a public meeting in December, 2007, hundreds of residents met to consider the threat. The overwhelming consensus was that local people should decide appropriate use of local groundwater, not predatory and far-removed speculators whose sole aim is to profit financially at the expense of local residents.”
Shades of John Wesley Powell!! Appearing before the House Committee on Irrigation in 1890, Powell vigorously advocated for local governance from within individual watersheds claiming that local residents were the most appropriate to determine how water and other natural resources should be used, and that indeed each watershed of the arid west should be regarded as a commonwealth. He also advocated that there should be no inter-basin transfers of water, that each watershed should be self-sustaining.
Carol Pittman and her fellow residents are working indefatigably to forestall this theft. They work closely with Bruce Frederick from the New Mexico Environmental Law Center and are determined to thwart the application placed before the state engineer by the Augustin Plains Ranch. They formalized their Coalition and applied for a 501(c) 3 status to provide for tax-deductible donations to help defray expenses. She said, “All of the people of this area, some in Socorro, some in Reserve and some even as far south as Glenwood, everyone came together to oppose this application. I think some people are mostly afraid about what will happen to them and their water rights and their way of life. It’s a very bad idea. It’s a precedent-setting thing… We’re not going to let it happen… It’s been apparent from the start that this application moved forward because somebody somewhere in the system wants it to move forward. Bruce (Frederick) told us that this is a speculative application and it should have been thrown out on the simple face of it. That makes us all very suspicious.”
She went on to say, “We need Bruce very much, but we also need the entire state to look at this and say ‘this is not the right way to go.’ And if this happens, the way that I look at it anyway, there will be new policies, a new vision, a new way of looking at things. It’s very difficult for the state engineer, because he has to deal with all these little political entities who are constantly approving more and more development, and what does he do about that? The way I envision the state engineer is that he’s constantly scrambling with the applications with this day-to-day stuff. How does he ever have time to think about what really should be done, what changes should be made? …I think this case might really bring that kind of thing to a head so that people all over the state concerned about water will think in terms of a new vision.”
It’s high time for another kind of speculation here—philosophical speculation, or perhaps a query into ethical considerations about transfusing water, the lifeblood from this vibrant, evolving habitat known to humans as the Plains of San Augustin into another as yet undisclosed overburdened oasis. First, what are the moral implications of privatizing these finite common waters into vast sums of money for carpetbaggers whose collective mindset precludes any known intuitive understanding of what a miracle the integrated biotic community of the Plains of San Augustin really is. Second, to transfuse its waters into the Río Grande, or elsewhere to satisfy legal requirements rendered three-quarters of a century ago before we, as a culture began to perceive that “growth for the sake of growth is the ideology of the cancer cell,” as Edward Abbey so blatantly articulated, is but a failing bulwark that exacerbates rather than relieves the water disaster that is already imminent for the over-abundant human population of New Mexico — to say nothing of the rest of this extraordinarily diverse biotic community. Thus we are about to trip over yet another stopgap measure. It’s as though we’re concurrently siphoning off our wisdom pool, our common sense as we pander to a failing economic paradigm.
The Plains of San Augustin is a beautiful living organism unto its own. Metaphorically, because of the VLA, it is a sensory apparatus from whence we “listen” to the cosmos for information about radio galaxies, remnants of supernova, gamma ray bursts, radio-emitting stars, our solar system, black holes, and other phenomena. It will also serve as a model for how we comport ourselves through the coming decades as we face very real global warming and climate instability. Human over-population in a high desert habitat where common waters are already strained does not bode at all well for our children, and especially their children. We wash our cars and irrigate golf courses with the drinking water of our grandchildren. We must not only thwart the madness of the water heist in the plains of San Augustin, but also triumph over our prevailing lack of commons sense, and use our preservation of this fragile, beautiful habitat as a banner leading us to ethical recovery in this time of desperation when all too often human intent and law violate natural law.
To register your opinion, contact:
Office of the State Engineer:
130 South Capitol Street
Concha Ortiz y Pino Building
P.O. Box 25102
Santa Fe, NM 87504-5102
Jack Loeffler is an aural historian, bioregional folklorist and author of many books. He has also produced hundreds of documentary radio programs including “Lore of the Land,” “The Spirit of Place,” and “Moving Waters: The Colorado River and the West.” Loeffler was recognized with the Governor’s Award for Excellence in the Arts in 2008, and was designated a Santa Fe Living Treasure in 2009.
A family of speculators is seeking legal right to drill thirty-seven wells deep into the San Augustin aquifer and pump 54,000 acre feet of water per year for 300 years, or until the aquifer runs dry.
What they’re trying to do, essentially, is to corner the market on water in this particular area.
About the author
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