PUEBLO OF SANTA ANA

OFFICE OF THE GOVERNOR

June 15, 2010

Mr. Jim Dunlap, Chairman

Interstate Stream Commission
P.O. i3ox 25102
Santa Fe, NM 87504-5 102

Dear Chairman Dunlap:

This letter is written to express the Pueblo of Santa Ana’s (the Pueblo) concerns over the draft
Agreement between the Interstate Stream Commission and Intel Corporation (draft Agreement). Due
to
the concerns expressed below, the Pueblo requests that the Commission postpone consideration of
agenda items 21 and 22 at the June 16, 2010 meeting until such time as the Pueblo’s concerns have been
resolved and other members of the public have had an opportunity to review and comment on the draft
Agreement.

One troubling aspect of the draft Agreement is the notion that the ISC owns or controls credit water
such that it can obligate that water as an offset for stream depletions caused by Intel’s groundwater
pumping. The ISC is charged with administering the waters of the State in accordance with the Rio
Grande Compact. Nothing in the Compact, the State Constitution, or other statute provides that the ISC
has the right to obligate or condemn that water for a private entity’s use. Rather, the water is contro
lled
by the State for the use of the public, including those with a right to divert the water and put it to
beneficial use under the doctrine of prior appropriation.

It is well understood that the waters of the Middle Rio Grande are over appropriated. The Pueblo
possesses senior rights to water in the Middle Rio Grande that are recognized and protected under
federal law. These senior rights are not to be impaired by the ISC’s operations under the Compact.
The
credit water administered by the ISC is subject to prior appropriation and the dedication of such water
to
satisfy a junior user’s obligations runs afoul of the real property interests held by prior appropriators,
joel tiding the Pueblo’s senior rights.

The draft Agreement provides that it is intended to “permanently reduce groundwater depletions” and
reduce ilie demand “for the acquisition and transfer of pre—1907 surface water rights” in the Middle
Rio
Grancle Valley. 1-lowever, nothing in the draft Agreement explains how groundwater depletions will
be
i’educcd or under what time frame. The Pueblo understands that if Intel stays in business in New
Mexico then it will draw upon water from the Albuquerque Bernalillo County Water Utility Author
ity
(ABCWUA). it is not clear how the use of water from the AJ3CWUA would necessarily reduce reliance
on groundwater or the need for the transfer and retirement of pre—1907 water rights. Indeed, it is
commonly understood that there are only 100,000 acre feet per annum (afa) of Rio Grande pre- 1 907

02 J)ovr Ro.o • Sxm \& PurILo • NM 87004

TEL 505—867—3301 • Rx: 505—867—3395 • goVL@sanLlnacNg
 water rights. There is also approximately 140,000 afa of current groundwater pumping by permit from
the Office of the State Engineer (OSE). The total quantity of permitted groundwater under those
permits is approximately 230,000 afa. At some point, the offset requirements for stream flow depletions
will reach a one for one exchange and there are not enough pre-1907 rights to meet that demand. The
draft Agreement does not explain how it changes that eventuality in any way that results in a reduction
of groundwater depletion or the need for pre-1907 rights to offset stream impacts.

In addition, the draft Agreement provides that the ISC will use the 740.9 acre feet per annum of
consumptive use rights to meet Intel’s offset obligations for depletion effects on the Middle Rio Grande.
However, the terms of the Strategic Water Reserve Statute do not provide for the use of water rights by
the ISC in this manner. The only authorized uses are compliance with stream compacts or court
decrees, and for the benefit of threatened or endangered species.

Accordingly, the Pueblo questions whether this draft Agreement to satisfy the offset obligations of a for
proht corporation comports with the ISC’s responsibility to manage the credit water on behalf of the
public in accordance with the State’s Constitution, the Strategic Water Reserve Statute, and the priority
administration of the water, including the Pueblo’s senior water rights as required by federal law. Thus,
the Pueblo requests that consideration of the approval of the draft Agreement be placed on hold until
such time as these concerns have been resolved through independent hydrologic analysis and an
Attorney General opinion.

Sincerely,

/ :
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7 /
/7

Bruce Sancj€z
Governor

cc: Coalition of Six Middle Rio Grande Pueblos

Governor Bill Richardson
Ken Salazar, Secretary, U.S. Department of Interior
Stephanie Kiger, Office of Governor Bill Richardson
Gary King, NM Attorney General
Estevan Lopez, Director, ISC
Randy Shaw, Designated Engineer, BIA
NM Interstate Stream Commission