 1    This memorandum opinion was not selected for publication in the New Mexico Reports. Please
 2   see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions.
 3   Please also note that this electronic memorandum opinion may contain computer-generated errors
 4   or other deviations from the official paper version filed by the Court of Appeals and does not include
 5   the filing date.

 6 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

 7 CITY OF ALAMOGORDO,

 8          Applicant-Appellee,

 9 and

10   TULAROSA COMMUNITY DITCH
11   CORPORATION, DAN C. ABERCROMBIE,
12   ELSIE I. BAILEY, LAYMON HIGHTOWER,
13   deceased, and ALLEN (BILL) TRAMMELL,

14          Protestants-Appellants,

15 v.                                                                              NO. 28,643

16 NEW MEXICO STATE ENGINEER,
17 JOHN R. D’ANTONIO, JR.,

18          Interested Party-Appellee,


19 APPEAL FROM THE DISTRICT COURT OF OTERO COUNTY
20 James Waylon Counts, District Judge

21   Stein & Brockmann, P.A.
22   James C. Brockmann
23   Jay F. Stein
24   Seth R. Fullerton
25   Santa Fe, NM
1 Katherine W. Hall, P.C.
2 Katherine W. Hall
3 Santa Fe, NM
 1 City of Alamogordo
 2 Steve Thies, City Attorney
 3 Alamogordo, NM

 4 for Applicant-Appellee

 5 Peter Thomas White
 6 Santa Fe, NM

 7 for Protestants-Appellants

 8   DL Sanders, Chief Counsel
 9   Hilary Lamberton, Special Assistant Attorneys General
10   Office of the State Engineer
11   Santa Fe, NM

12 William D. Teel, Special Assistant Attorney General
13 Albuquerque, NM

14 for Appellees John R. D’Antonio, Jr. and New Mexico State Engineer


15                              MEMORANDUM OPINION

16 BUSTAMANTE, Judge.

17         The Tularosa Community Ditch Corporation, Dan C. Abercrombie, Elsie I.

18 Bailey, Laymon Hightower (deceased), and Allen (Bill) Trammell (Protestants) appeal

19 the decision of the district court approving a permit for the City of Alamogordo

20 (Alamogordo) to appropriate brackish groundwater within the Tularosa Underground

21 Water Basin (Tularosa Basin). At issue on appeal is whether the district court was

22 justified in its ruling that (1) the appropriation is not detrimental to public welfare and


                                                2
 1 will not adversely impact existing water rights, (2) there are appropriable water rights

 2 remaining in the Tularosa Basin, (3) the permit adequately limits the total amount of

 3 water that Alamogordo may appropriate, and (4) the appropriation is not contrary to

 4 the conservation of water. We find substantial evidence in support of the district

 5 court’s ruling and affirm its decision to approve Alamogordo’s permit to divert

 6 brackish water from the Tularosa Basin.

 7 BACKGROUND

 8        In September 2000 Alamogordo filed applications for wells T-3825 through T-

 9 3825-S-9 seeking to divert a combined total not to exceed 13,450 acre-feet per year

10 (afy) of brackish water from the Tularosa Basin. These wells are located at the “Snake

11 Tank Well Field” north of the Village of Tularosa and outside of the Tularosa

12 Underground Water Basin Administrative Criteria (TUWBAC) area. The water

13 diverted from these wells will be treated by desalination to produce potable water to

14 be transported via pipeline for beneficial use in Alamogordo’s water service area.

15        The Office of the State Engineer initially issued a permit for the T-3825 wells

16 to allow diversions of up to 3,000 afy, with a provision that up to 4,500 afy could be

17 diverted in any one year, provided that the total diversion over any five-year period

18 did not exceed 15,000 acre-feet. Protestants, along with several other parties,

19 appealed the decision of the OSE to the district court. The other parties ultimately


                                              3
 1 withdrew their protests after entering into settlement agreements with Alamogordo.

 2 Alamogordo itself was also dissatisfied with the permit issued by the OSE and

 3 submitted its own appeal to the district court. Alamogordo and the OSE ultimately

 4 entered into a settlement agreement resolving their disputes, and a revised permit was

 5 issued.

 6         The revised permit would allow Alamogordo to divert up to 4,000 afy from the

 7 T-3825 wells with a provision that up to 5,000 afy may be diverted in any one year,

 8 provided that the total diversion over any five-year period did not exceed 20,000 acre-

 9 feet.     The revised permit contains twelve conditions of approval, including

10 requirements that groundwater levels and quality be monitored and reported to the

11 OSE annually and that diversions under the permit be suspended if there are

12 indications that valid senior water rights will likely be impaired or that water levels

13 will fall beneath those acceptable under the TUWBAC. After a de novo review, the

14 district court ordered that the revised permit be approved based on its findings and

15 conclusions that there was unappropriated water within the Tularosa Basin, that

16 existing water rights would not be impaired by granting the permit, and that granting

17 the permit would not be contrary to conservation or public welfare.

18 STANDARD OF REVIEW




                                              4
 1        The district court entered 136 findings of fact and twenty-one conclusions of

 2 law in support of its order approving the revised permit. Although Protestants argue

 3 for a de novo review, the issues raised on appeal involve only evidentiary challenges.

 4 Thus we apply a substantial evidence standard of review. See Bishop v. Evangelical

 5 Good Samaritan Soc’y, 2009-NMSC-036, ¶ 25, 146 N.M. 473, 212 P.3d 361

 6 (applying a substantial evidence standard where no legal questions remain).

 7 “Substantial evidence is such relevant evidence that a reasonable mind would find

 8 adequate to support a conclusion.” Landavazo v. Sanchez, 111 N.M. 137, 138, 802

 9 P.2d 1283, 1284 (1990). In reviewing a substantial evidence claim, “[t]he question

10 is not whether substantial evidence exists to support the opposite result, but rather

11 whether such evidence supports the result reached.” Las Cruces Prof’l Fire Fighters

12 v. City of Las Cruces, 1997-NMCA-044, ¶ 12, 123 N.M. 329, 940 P.2d 177 (filed

13 1996). “Additionally we will not reweigh the evidence nor substitute our judgment

14 for that of the fact finder.” Id. “When the trial court’s findings of fact are supported

15 by substantial evidence, . . . refusal to make contrary findings is not error.” Griffin v.

16 Guadalupe Med. Ctr., Inc., 1997-NMCA-012, ¶ 22, 123 N.M. 60, 933 P.2d 859.

17 DISCUSSION

18 I.     Substantial Evidence Supports the District Court’s Conclusion That
19        Approval of the Revised Permit is Not Detrimental to Public Welfare and
20        Will Not Adversely Impact Existing Water Rights


                                               5
 1        Protestants argue that approval of the revised permit is detrimental to public

 2 welfare and will impair existing water rights for several reasons. First, Protestants

 3 argue that approving the revised permit may conflict with the desires of existing water

 4 rights holders wishing to maintain current supplies. Protestants also argue that the

 5 criteria found in TUWBAC provide an insufficient basis for an appropriation when

 6 a local jurisdiction has adopted a separate water policy. Specifically, TUWBAC relies

 7 on a forty-year water-planning horizon and allows annual drawdowns of up to two-

 8 and-a-half feet per year, while Otero County’s Comprehensive Plan anticipates

 9 expanding to a sixty-year water planning horizon and encourages a reduction in

10 annual drawdown to no more than one foot per year. Protestants assert that instead

11 of relying on the TUWBAC criteria, the district court should have adopted the criteria

12 from the Otero County Comprehensive Plan to guide its analysis.

13        Several of the district court’s findings support the conclusion that approval of

14 the revised permit would not impair existing water rights. The district court found

15 that the Tularosa Community Ditch Association’s water rights would not be impaired

16 or reduced. The district court relied on evidence that the Tularosa Community Ditch

17 Association’s point of diversion was “located within the mountain block [, which]

18 means that the surface water supply to the ditch, which is derived from precipitation

19 run-off and mountain block aquifer discharge upgradient of the basin fill aquifer, will


                                              6
 1 not be impaired by pumping of water in the basin fill.” The Protestants do not

 2 challenge any of the evidence supporting this finding.

 3        With respect to well impairment, the district court considered the effects of the

 4 revised permit based on the results of the OSE’s groundwater flow model. It noted

 5 that this model was the most conservative of the three models currently available, in

 6 that it likely over-estimates drawdowns and under-estimates recharge. The court

 7 noted that the question of impairment may depend on several factors, including the

 8 age and depth of a well, its construction characteristics, and the amount of time it

 9 would take for the effects of Alamogordo’s pumping to reach it. Taking the

10 groundwater model and these factors into consideration, the district court found that

11 approval of the revised permit would not result in impairment of existing rights. It

12 also found that if any signs of impairment were to develop, the conditions of approval

13 for the revised permit would allow the OSE to take action to protect senior rights.

14 Protestants argue that the district court should have accepted or credited other

15 evidence on this issue. Again, we do not reweigh evidence or substitute our own

16 judgment for that of the fact finder. Las Cruces Prof’l Fire Fighters, 1997-NMCA-

17 044, ¶ 12.

18        Furthermore, Protestants’ assertion that the revised permit is inconsistent with

19 public welfare as described by the Otero County Comprehensive Plan is somewhat


                                              7
 1 misplaced. Protestants fail to note that the County’s plan itself contains statements

 2 supporting the revised permit. Specifically, the plan endorses “desalinating the

 3 abundant Tularosa Basin Aquifer.” It also states that the County supports the efforts

 4 of the OSE and “utilizes its guidelines in making decisions on water use within the

 5 County.” Finally, we note that approval of the revised permit in no way prevents

 6 Otero County from following through with its objectives to “continue to work with

 7 State authorities to better understand the aquifer” and to promote water conservation

 8 and aquifer management to reduce aquifer depletion rates.

 9        Even assuming that inconsistencies exist, Protestants’ evidentiary challenge

10 falls short. The district court recognized that a regional water plan may consider the

11 public welfare of a region, but that the OSE must consider the welfare of the State as

12 a whole. It found that approval of the permit to appropriate brackish groundwater in

13 order to convert it to potable water creates a benefit to the public welfare of New

14 Mexico by reducing demand on existing fresh water supplies. Protestants do not

15 challenge these findings. Absent a more substantial challenge, we cannot conclude

16 that the district court’s findings in this area were unsupported. See Rule 12-213(A)(4)

17 NMRA.

18 II.    Substantial Evidence Supports the District Court’s Conclusion That There
19        are Unappropriated Water Rights Sufficient to Satisfy the Appropriation
20        Under the Revised Permit


                                              8
 1        Protestants’ argument that the district court erred in finding that there is

 2 unappropriated water within the Tularosa Basin is unfounded. It relies on assertions

 3 that the district court lacked authority to make such a determination because the basin

 4 is rechargeable and the appropriation is more than de minimis. Even assuming that

 5 Protestants present a valid legal distinction based on whether or not a basin is

 6 rechargeable, Protestants cannot demonstrate that there is no support for the district

 7 court’s findings of fact that there is appropriable water within the Tularosa Basin.

 8        The district court relied on recent measurements showing that water levels in

 9 the Tularosa Basin have not declined to the extent previously predicted. Furthermore,

10 it found that groundwater levels actually rose between 1982, when TUWBAC was

11 initially implemented, and 1995, and that as recently as 2004 water levels still

12 remained higher than those measured in 1982. These findings tending to show the

13 availability of appropriable water are supported by the testimony of Eric Keyes and

14 John Shomaker. Protestants do not challenge these findings, and even assuming that

15 these facts were controverted, we cannot reweigh the evidence on appeal. Las Cruces

16 Prof’l Fire Fighters, 1997-NMCA-044, ¶ 12.

17 III.   The District Court’s         Approval      Properly    Limits Alamogordo’s
18        Appropriation

19        Protestants argue that “[t]he most significant error in the Revised Permit and

20 condition [nine] in particular is that it does not . . . quantify or limit Alamogordo’s

                                              9
 1 total diversion of water from all surface and ground water sources of supply.”

 2 Condition nine expresses an expectation that Alamogordo’s annual water usage will

 3 not exceed 165 gallons per capita per day (gpcpd). Protestants argue that, rather than

 4 stating an “expectation,” this condition should be phrased as an absolute limit.

 5 Otherwise, Protestants assert Alamogordo could pump water in excess of its needs

 6 from the Snake Tank Well Field, even in years when it could otherwise satisfy all its

 7 needs from other sources.

 8        We find evidence in support of the district court’s findings that the revised

 9 permit is reasonably limited. Protestants do not acknowledge that condition nine also

10 requires Alamogordo to “utilize the highest and best technology available to ensure

11 ongoing conservation of water to the maximum extent practical.” Protestants also fail

12 to acknowledge the limit imposed by condition two of the revised permit:

13        The total annual combined diversion of groundwater from Well Nos. T-
14        3825 thru T-3825-S-9 under this permit shall not exceed 4,000 afy,
15        except that the City may increase the total annual combined diversion of
16        groundwater from said wells during any calendar year up to 5,000 acre-
17        feet, provided that the sum of annual diversions for any consecutive five-
18        year period does not exceed 20,000 acre-feet.

19        Contrary to Protestants’ argument, the district court did in fact find adequate

20 safeguards to ensure that Alamogordo actively conserves water by not-over pumping

21 during years where its other water sources produce strong yields. Specifically, in

22 addition to the conditions in the permit, the district court found that Alamogordo has


                                             10
 1 undertaken significant water conservation measures in recent years by using reclaimed

 2 water for all of its public green spaces, by passing conservation ordinances that

 3 include restrictions on outdoor watering and a rate system with tiered billing based on

 4 use, and by passing an ordinance establishing an emergency plan for heightened

 5 conservation measures in times of drought. Finally, based on the expert testimony of

 6 Len Stokes, the district court found that Alamogordo would “first use its high quality,

 7 limited surface water sources, then phase-in use of its existing lesser quality

 8 groundwater sources, and lastly, would phase-in use of the mineralized brackish water

 9 from the proposed T-3825 well field.” Protestants do not directly challenge any

10 evidence supporting these findings, which tend to show that water under the revised

11 permit will not only be used judiciously, but also only as the last of three sources.

12 IV.    The District Court’s Findings That the Revised Permit Will Not be
13        Contrary to Conservation are Supported by Substantial Evidence

14        Protestants argue that Alamogordo’s use of 165 gpcpd in order to project its

15 future water needs is excessive. Protestants argue that Alamogordo’s water needs

16 should have instead been projected based on a maximum usage of 143 gpcpd.

17 Protestants assert that this is more reasonable because from 2000-2005, Alamogordo

18 consumed on average only 139 gpcpd.

19        While Protestants argue that the district court could have imposed a lower usage

20 rate, they fail to acknowledge evidence supporting a usage rate of 165 gpcpd. For


                                             11
 1 example, the district court reviewed the gpcpd consumption of thirteen other

 2 southwestern cities. Alamogordo’s benchmark of 165 gpcpd is lower than eight of the

 3 other cities, and the field of thirteen is bookended by El Paso, Texas, at the low end

 4 consuming 142.6 gpcpd, and Scottsdale, Arizona, at the high end consuming 322.8

 5 gpcpd. The court also noted that 165 gpcpd compared favorably with the Village of

 6 Tularosa’s 241 gpcpd, Holloman Air Force Base’s 300 gpcpd, and Las Cruces’ 230

 7 gpcpd (with a goal of 180 gpcpd). Based on this evidence, the district court found that

 8 use of 165 gpcpd was reasonable and consistent with usage by other southwestern

 9 cities.

10           Based on reports and testimony by Jim Sizemore about water usage in other

11 cities, the district court found that 165 gpcpd was an effective limit to impose on the

12 city as it grows and that converting brackish water to potable water to meet this

13 demand promotes conservation of potable water. Although Protestants’ push for a

14 lower gpcpd is understandable, we cannot conclude that use of the 165 gpcpd standard

15 was unreasonable in light of the evidence of water usage in other cities and

16 Alamogordo’s notable conservation efforts.

17 CONCLUSION

18           For the foregoing reasons, we affirm the decision of the district court.

19           IT IS SO ORDERED.



                                                12
1
2                               MICHAEL D. BUSTAMANTE, Judge

3 WE CONCUR:


4
5 CYNTHIA A. Fry, Chief Judge


6
7 LINDA M. VANZI, Judge




                                 13
