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Proposed East Mountains development loses water fight

Copyright © 2019 Albuquerque Journal

In the latest chapter of a decadelong water rights fight, an Albuquerque judge on Tuesday rejected an application that would have given a developer access to more than 100 million gallons of groundwater annually for a massive planned community in the East Mountains.

Judge Shannon Bacon (center).

State District Judge Shannon Bacon determined that the proposal would impair existing water rights and was contrary to the conservation of water. She said the applicant, Aquifer Science, failed to “consider climate change in preparing its water demand or hydrologic analyses.”

It’s not clear what the determination means for the future of the development or how the company plans to move forward. Attorneys for Aquifer Science could not be reached for comment Wednesday. Representatives of the Campbell Ranch development also did not respond to a request for comment from the Journal.

Aquifer Science was formed to procure water for Campbell Ranch, a proposed master development with residential, commercial and recreational elements, including two golf courses. At full build-out, plans call for the community to have 4,000 homes and 10,000 residents.

Bernalillo County and nearby residents were outspoken in their opposition.

A 2009 application seeking to appropriate water from the Sandia Underground Water Basin for the development’s use was denied by the Office of the State Engineer amid public outcry. Another denial, in 2014, was based on a determination that there was no unappropriated water in that basin. The decision was appealed days later.

The state engineer later reversed course and took the position that water was, in fact, available to satisfy the application. But that reversal wasn’t enough to persuade the presiding judge to side with the development.

Bacon’s ruling comes after an 11-day trial in March, during which Aquifer Science and the State Engineer’s Office offered testimony that roughly a dozen existing wells would be affected. But Bacon agreed with an expert hired by the residents that “approximately 100 wells will be impaired by the application.” She wrote that Aquifer Science and the State Engineer’s Office’s later findings were the result of improperly applied guidelines.

“Aquifer Science’s application is denied because the magnitude of the impairment to existing water rights is significant,” she wrote.

Douglas Meiklejohn, executive director of the New Mexico Environmental Law Center, which represented several of the residents, called Bacon’s finding regarding climate change “particularly important.”

The judge, who was recently appointed to the state Supreme Court, said one of the problems with the application was that it did not take climate change into consideration.

“The data surrounding climate change indicate that the availability of surface water will decline during the life of this proposed development,” Bacon wrote. “Applicant’s failure to include this in its analysis suggests a lack of long-term planning regarding conservation.”

Setting aside the legal aspects of the case, Meiklejohn said, he thought the case demonstrated the power of community involvement and support.

“It’s very significant, in my view, that the two community groups were able to defeat this application by a private company,” he said.

Kathy McCoy, a member of one of those groups, who is also a party in the case, said residents were “ecstatic.”

“We decided from the very beginning that we were going to get this settled,” she said. “And we will not settle for our wells being impaired, especially by an outside speculator.”

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