Aamodt and Abeyta: An Unsettling?

By KAY MATTHEWS

As John D’Antonio takes over the reigns of the Office of the State Engineer, the position he previously held from 2003 to 2011, he re-enters the world of the two northern New Mexico water adjudication settlements that appear to be anything but settled. The Taos Valley Abeyta Adjudication is back in the news after the drill rig-sitting protest by Buck Johnston of Guardians of Taos Water. The Pojoaque Valley Aamodt Adjudication is back in the news after the New Mexico congressional delegation wrote a letter to the Bureau of Reclamation stating that because of that agency’s cost overruns on the regional water system the entire settlement is in jeopardy. (If the Santa Fe New Mexican would actually cover this situation the news would be more far reaching.) Welcome back to your mistakes, Mr. D’Antonio.

I’ve been writing about these adjudications since the late 1990s. I’ve collected this history in my book, ¡No Se Vende! Water as a Right of the Commons, which I hope helps contextualize how these lawsuits essentially privatize water rights that were once shared and managed communally under Native American and Spanish custom. Adjudications, under the dictates of the Doctrine of Prior Appropriation (“first in line, first in time”), are the process by which the Office of the State Engineer (OSE) determines the extent, ownership, and priority of water rights in a specific geographic area. Theoretically, they should protect those parties with pre-1907, or senior water rights, primarily owned by the pueblos and acequias that continue to manage these rights in a fairly traditional communal manner. What these adjudications actually do is essentially twofold: 1) pit the two communities, Native and Hispano, against each other; and 2) rely on technological fixes and market forces that move water out of its area of origin to facilitate future growth and development.

Complicit in these machinations are the politicians and water brokers. Santa Fe County wouldn’t have been involved in the Aamodt Adjudication in the first place without its ill-fated attempt to transfer the northern New Mexico Top of the World (TOW) water rights it acquired in 1997 to below Otowi Gauge at the Buckman Well Field, its main source of water. This attempt to circumvent the de facto barriers to the transfers of water from the northern basin to the middle or lower basins met with a barrage of opposition and a protest by 19 acequias and parciantes (Disclosure: I was a protestant).

Then, in 2001, when the sitting judge in the Aamodt Adjudication ruled that the pueblos involved in that case—Pojoaque, Tesuque, Nambe, and San Ildefonso—were limited in their aboriginal water rights claim of domestic water use to what was used between 1846 and 1924, Senator Pete Domenici got involved to push the adjudication into settlement negotiations to insure that the pueblos would get future water rights via a regional water system that required non-pueblo water users to sign up and cap their wells. This was despite widespread opposition and assessments from various entities involved in the deal: 1) non-pueblo water users opposed a delivery system that did not include a complementary wastewater system; 2) the federal government said it wouldn’t fund the system with the obligatory well capping (this was stated back in 2004); and 3) the agency responsible for its construction, the Bureau of Reclamation (BOR) issued a feasibility study that included this statement: “The design and construction of a regional water system prior to and without consideration of a complementary regional wastewater collection and treatment system is unusual and not recommended civil engineering practice. This Settlement regional water system is a partial solution and is not protective of future shallow ground water quality and use.”

But that didn’t stop anything. Santa Fe County had already purchased the approximately 600 afy of water rights from TOW in northern New Mexico near Costilla, which would now be earmarked for the non-pueblo water users in the regional water system, and in 2006 bought an additional 1,100 afy of TOW water rights that would go to the pueblos. Senators Domenici and Bingaman introduced legislation in 2008 to fund the settlement and in 2010 Congress approved it, along with the Abeyta and Navajo Adjudication settlements. The BOR completed its Environmental Impact Statement on the regional water system and the federal government eventually committed to its initial cost of $106 million with a start date of 2018. The original protest of the 600 afy transfer became moot when the County combined those water rights with the new purchase and Taos County appealed the entire transfer in 2017.

Which brings us up to date and the unsettling. Santa Fe County ended up leasing the 600 afy of TOW water rights back to its area of origin to owners Ed and Trudy Healy, who bought the dry farm after it was separated from its water rights. Why? Because the regional water system is currently in limbo: the number of non-pueblo residents who indicate they will hook up to the water system is way below that projected by the county, and the costs of the system have risen so dramatically and its implementation is so delayed that the federal government is warning the entire settlement may be in jeopardy.

I reported the burgeoning cost estimates in a February La Jicarita article: the current estimate, in 2018 dollars, is $421.4 million, with a $213.4 million funding gap: $160.2 million in federal funding and $53.2 million non-federal funding. The state of New Mexico has no obligation to provide any additional amounts above what is stipulated in the Cost Sharing Agreement of the Settlement, which is $57 million. Santa Fe County’s Cost Share is $13.4 million. I called the BOR to see what I could find out about the status of the regional water system and was referred to Pamela Williams of the Department of the Interior, who never returned my calls. So I called Senator Udall’s office to see if they had an update, but they funneled me through the communications department that promised to get back to me and never did. Not good form, folks; already closing shop? I’ll keep trying to get some information.

The price tag of the Abeyta Settlement ($120 million was the original price tag) doesn’t reach the levels of the Aamodt, but the same negatives apply. Taos Pueblo is entitled to its Historically Irrigated Acreage Right of 5,712 acres (22,508.35 afy) but has limited its irrigation to 2, 322.45 afy of recently irrigated land so as not to disrupt non-pueblo irrigators in the Taos Valley. It has also acquired 2,215 afy of San Juan/Chama water rights for economic development (leasing). This could have been the end result of the negotiations, but those pesky water markets and future development needs pushed it beyond a sustainable solution into the world of technological fixes that are the focus of its opponents: the mitigation wells. A deep water well system will be used to offset any surface water depletions resulting from future groundwater diversions and consumptions, i.e., future development in the Town of Taos, the pueblo, the mutual domestic water associations, and El Prado Water and Sanitation District. These 1,000 foot wells will be located in each stream system in the valley and operated by an acequia association or domestic well association.

I told the story of El Prado Water and Sanitation District’s water market history in my February article. Looking over its 2018 Annual Financial Report one is struck by the fact that the total revenue from its 489 “units” is $360,343, but its capital assets include $3, 60,343. The district got its water allotment increased from 25 afy to 575 afy (John Painter told me its actual water usage varies from 75 to 125 afy). The Taos News reported on March 28 that El Prado will be serving the planned Tarleton Ranch Eco-Village, a 400 unit development on SH 150 if approved by Taos County. According to Painter, El Prado has two contracts with the Ranch filed with the county clerk’s office; the developer will be responsible for the infrastructure’s extention from the district to the Ranch (guess we’ll see if the developer applies for a Tax Interest Development District (TIDD) that allows the developer to divert a portion of property and sales taxes from within a district to reimburse the upfront costs of new infrastructure — such as roads and utilities — in the district.). If the development is approved by the county El Prado would be doubling its carrying capacity but with many acre feet of water left in reserve.

Painter also told me that the Abeyta implementation group, ostensibly comprised of the BOR and the parties to the settlement, has not held any recent meetings in Santa Fe where it relocated to avoid parciantes showing up in Taos to protest the settlement.  These implementation meetings do not follow the state’s open meeting law: no public notice is given and no recording devices are allowed (Cultural Energy KCEI’s attempt to record an implementation meeting in December of 2017 resulted in the meeting being cancelled).

The Town of Taos got 366 afy of San Juan/Chama water, new supply wells, and the backup of the mitigation wells to compensate for increased water use.

When the Taos Valley Acequia Association, which represented the 54 valley acequias in negotiations, signed off on the settlement, it did so in a vacuum: most of the parciantes on these acequia had no idea what a mitigation well was, what it meant to the acequias that would be managing it, and why the TVAA thought this was an acceptable component of the settlement. A special kind of well called an Aquifer Storage and Recovery Well (ASR) was designated for the Acequia Madre del Rio Lucero y Arroyo Seco, where water would be diverted from the Rio Lucero in the winter, stored in the ASR well until spring, then pumped from the well and transported via pipeline to the acequia (included in the settlement to compensate the ditch for a “taking” from the Rio Lucero by Taos Pueblo in 1935).

Several of the acequias and mutual domestic associations, charged with managing the mitigation wells, have declined to do so. On March 16 the Acequia Madre del Rio Lucero y Arroyo Seco voted 53 to 3 to essentially leave the TVAA by not paying its annual dues. The acequia already has declined the ASR wells and will lose the water rights assigned to those wells (dramatically reduced from the approximately 92 afy of transferred Questa water rights to 24 afy).

Taos County initially took a very different tack than Santa Fe County. Under a progressive county commission it passed a 2010 Public Welfare Ordinance that set up a Public Welfare Committee to review all water transfers within and from Taos County to assess whether the commission should file a protest with the Office of the State Engineer if the transfer was not in the best interest of Taos citizens. The committee (Disclosure: I was chair of the committee) reviewed all the transfers that fell within the purview of the Abeyta Settlement and recommended that several of them be protested, primarily to bring them to the light of day before all the citizens of Taos County, not just those in the Taos Valley (several transfers were from the northern part of the state, in Questa and Top of the World). The parties to the settlement immediately rallied against the committee, claiming any transfers under the auspices of the settlement should be omitted from any review. When the commission, and the county manager, changed personnel, the county eviscerated the committee to protect the settlement (I resigned).

Perhaps the most depressing aspect of this entire mess was the failure of Taos County to keep the TOW water rights in el norte. On March 19 the county commission voted to drop its appeal of the State Engineer’s denial of its protest of the transfer, citing cost concerns. It was no surprise that the State Engineer denied the protest—the state is a party to the Abeyta Settlement, and the OSE and Interstate Stream Commission are invested in protecting it. I contacted Commissioner Candyce O’Donnell to ask why the commission pulled the appeal after previously approving its budget, which was similar to the latest figures announced at the March 19 meeting, but she was unable to get me the attorney’s report before I published.

Twenty years after I was a protestant to the first transfer of the TOW water rights they’re still in limbo, partially leased, at least temporarily, to water some pasture for cattle (on the Healy’s property). The “breadbasket” of produce they watered in the 1950s—potatoes, sugar beets, pinto beans, alfalfa, and barley—stands no chance of resurrection, as the un-pumped aquifer migrates to and flows down the Rio Grande (that’s the hydrological theory) for extraction somewhere, if not the Aamodt Settlement, perhaps south of Otowi Gauge to Santa Fe County after all.

As we enter the next few decades of escalating climate crisis, will any of these water rights actually be wet water? That question doesn’t get asked by those who seek its short term profit at the expense of long term sustainability. Those of us who have been challenging these policies for decades will be dead by the time their failures become self evident for our grandchildren.

Addendum: El Prado Water and Sanitation District and Cooper Drilling filed a restraining order with the Taos County Sheriff’s Department against Guardians of Taos Water. The order states that members of the group cannot go within 100 yards of the location perimeter of the Midway Well, the one that Buck Johnston climbed (naming 50 John and Jane Does). There will be a court hearing on Tuesday, April 2 at 10:00 in the Courtroom of Judge McElroy.

 

 

 

 

 

 

 

 

 

 

 

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3 comments

  1. 1. Where are the water rights for the mitigation wells specifically coming from?
    2. What permit is required for the 5 mitigation wells?
    3. What are the terms of mitigation well permits?
    4. Is it legal to recharge surface water from ground water? I thought OSE prohibited ground water for irrigation so are there new rules to allow this and if so can u explain please?

    • 1. The explanation in the Abeyta Settlement:
      “7.3.2.2. OFFSET OF DEPLETION EFFECTS SHIFTED TO THE RIO
      GRANDE SEGMENT. The intended effect of using the Buffalo Pasture
      Recharge Project and the Mitigation Well System will be to offset surface water
      depletion effects on the Buffalo Pasture and Taos Valley Tributaries,
      respectively, as well as additional effects resulting from the withdrawal of
      groundwater for mitigation purposes, and to shift depletion effects to the Rio
      Grande Segment. One effect of the ASR Project will also be to shift depletion
      effects to the Rio Grande Segment. The Town, EPWSD, MDWCAs, and
      Pueblo shall each be responsible for offsetting their proportionate share of those
      2. Each well will come under NEPA
      shifted surface water depletion effects, which effects may vary annually
      depending on the quantity and location of groundwater actually diverted. The
      ASR Project shall not be operated to cause depletions greater than one hundred
      (100) AFY. The Rio Grande Segment depletions that will result from the ASR
      Project shall be offset by acquisition of one hundred (100) AFY in accordance
      with Article 6.1.2. The offset of surface water depletion effects shifted to the
      Rio Grande Segment by the Buffalo Pasture Recharge Project shall be
      accomplished as set forth in Article 7.3.1 and offset of surface water depletion
      effects shifted to the Rio Grande Segment by the Mitigation Well System and
      ASR Project shall be accomplished as set forth in Article 7.3.3.
      7.3.2.3. SOURCES OF OFFSETS. For all Rio Grande Segment depletion
      effects required to be offset by Article 7.1, offsets may be made by:
      7.3.2.3.1. change of point of diversion of Rio Grande water rights;
      7.3.2.3.2. delivery of San Juan-Chama Project or other imported water into the
      Rio Grande at or above the confluence of the Rio Chama and the Rio
      Grande; or
      55
      7.3.2.3.3. delivery of water into the Rio Grande or a tributary pursuant to any
      other method approved by the State Engineer.”

      2 and 3. Each well will come under NEPA and require either a Categorical Exclusion (CE), Environmental Assessment (EA), or Environmental Impact Statement (EIS). El Prado’s supply Midway Well fell under a CE. Most likely, the mitigation wells will fall under an EA.

      4. I really have no answer to this question; this kind of thing has never been done before.

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