Water dispute swells between Nature Conservancy, city

Bob Findling, director of conservation projects at The Nature Conservancy, takes a look at the head gate that controls the distribution of water between the bypass ditch and the restoration channel for the Santa Fe River on Wednesday. The city of Santa Fe and The Nature Conservancy are locked in a dispute over water flows into the conservancy’s Santa Fe Canyon Preserve. The city cut off all flow of water from the Santa Fe River into conservancy property and threatened to take legal action if the conservancy continued to take water. Luis Sánchez Saturno/The New Mexican

The city of Santa Fe and The Nature Conservancy are locked in a dispute over water after the city abruptly cut off all flows from the Santa Fe River into the conservancy’s preserve this spring, threatening wildlife and what has been called one of the last unspoiled riparian areas along the river.

Last month, the City Attorney’s Office threatened to take legal action and issue a cease and desist order against the conservancy if it continued to siphon water from the river.

“When the Nature Conservancy diverts the water that the City is delivering to the Acequias, the City has to increase releases out of storage to meet our delivery obligations,” Assistant City Attorney Marcos Martinez wrote in a letter to the conservancy May 12.

“Because the Nature Conservancy has no water rights, nor does it have the right to divert the City’s water, the Nature Conservancy is interfering with both the City and the Acequias’ lawful use of water,” he wrote.

The City Council is scheduled to discuss the issue in a closed legal session during a special meeting Thursday, generating objections from neighbors and open-government advocates who contend it should be discussed in public.

“This seems to be an improper attempt to control the flow of information of the governing body,” Richard Ellenberg, who lives across the road from the 525-acre preserve on Santa Fe’s east side, wrote in an email to Mayor Javier Gonzales, city councilors and others. “Provide information in secret and have the Governing Body act upon it.”

The council agenda states that members of the governing body will discuss “the purchase, acquisition or disposal of real property or water rights by the city of Santa Fe, including, without limitation, relating to the Santa Fe River target flow ordinance and obligations to provide certain acequias with water.”

The New Mexico Foundation for Open Government contends that neither exception cited by City Attorney Kelley Brennan is applicable in this instance.

The Open Meetings Act “recognizes that because ‘a representative government is dependent upon an informed electorate’ all persons are entitled to the greatest possible information regarding the affairs of government and the official acts of those who represent them,” Susan Boe, the foundation’s executive director, wrote in a letter to the mayor and city councilors Wednesday.

“As a result, the formation of public policy or the conduct of business by vote should not be conducted in closed meetings,” Boe added.

In a statement, Brennan defended her decision to request that the matter be discussed behind closed doors.

“The matter is appropriate for discussion in executive session under both the ‘threatened or pending litigation’ exception and the ‘acquisition/disposition of real property/water rights’ exception,” she wrote. “With respect to the former, the exception does not apply only when a public body is sued or threatened with litigation; it also applies when the public body consults with its attorney about a lawsuit the public body has initiated or is considering initiating. With respect to the latter, the exception relates to real property as well as water rights.”

Nick Schiavo, director of the Public Utilities Department and the Water Division, referred inquiries to the city’s legal department. Alex Puglisi, the city’s water supply manager, did not return a message seeking comment.

At issue are water flows under the city’s Living River Ordinance, which allows up to 1,000 acre-feet of water a year to be released from the city’s two reservoirs in the Santa Fe Municipal Watershed and put back into the river.

Ellenberg, the former chairman of the Democratic Party of Santa Fe County, said one of the goals of the ordinance was to protect and preserve the natural riparian habitat in the preserve and on city property east of Cerro Gordo Road.

Bob Findling, the conservancy’s director of conservation projects, said it’s always been the conservancy’s understanding that when Living River flows are released, some of those flows would be directed through the preserve.

But the city cut off water flows to the conservancy’s property without explanation this spring, he said. First, he said, the conservancy found a lock on a diversion head gate located in the preserve. When he left messages with a city employee inquiring about the lock, he said, he never heard back.

“I thought someone else was tampering with the gate,” he said. “They never called me back. So, as a result, we removed the unidentified lock.”

The lock was just the beginning, he said.

“It wasn’t clear what exactly was going on until the city took a piece of heavy equipment in and basically dumped a whole load of dirt to preclude any flows into the preserve,” he said.

Findling said the dispute could have been avoided had the city communicated with the conservancy.

“If they had, we may not have liked it, but at least we would’ve understood,” he said.

Findling said the lack of water flows will affect the health of the preserve and the wildlife that relies on the preserve for its habitat.

The preserve “attracts thousands of people all the time,” he said. “If it’s no longer an asset but becomes a liability, well, that’s unfortunate.”

Contact Daniel J. Chacón at 505-986-3089 or dchacon@sfnewmexican.com. Follow him on Twitter @danieljchacon.