Taos Indian Water Rights Settlement Draft EA is Released

“The Taos Indian Water Rights Settlement Mutual-Benefits Project Draft Programmatic Environmental Assessment” is such a long and complicated name—for what is essentially an environmental assessment of the Abeyta Adjudication Settlement—that one might assume it’s long, thorough, and definitive. It’s not. Two hundred and forty-two pages of the 302-page Taos IWRS PEA, as I’ll refer to it, are actually a copy of the settlement itself. It doesn’t take many pages to write an EA when there are only two alternatives and specific locations for supply and mitigation wells still undecided.

Every National Environmental Policy Act (NEPA) review, be it an environmental assessment or an environmental impact statement (which is a more involved analysis for larger or more impactful projects) requires that there be a No Action alternative, which obviously is almost never the preferred alternative. In the Taos IWRS PEA the No Action alternative states that if this alternative were to be chosen, it would mean that the Bureau of Reclamation (BOR), assigned the task of implementing the settlement, would not authorize the funds for “planning, permitting, designing, engineering, and construction” of the mutual-benefits projects, i.e., the supply and mitigation wells and stream gage designated in the Settlement Agreement. Water rights assigned in the settlement agreement to all parties remain extant.

The other alternative, the Proposed Action alternative, would provide the BOR with the funding to implement 14 projects: drilling, use, and maintenance of water supply wells, mitigation wells, and for the Arroyo Seco Arriba project (which most of us know as the Acequia Madre del Rio Lucero y del Arroy Seco) deep aquifer storage and recovery (ASR) wells or one or more surface water reservoirs.

Yet only one of the 14 projects, the initial El Prado Water and Sanitation District’s Midway Well sites has been identified. Midway Well #5 was drilled and test pumped and failed to meet the required capacity. A second Midway Well #6 was drilled to supplement #5: both of these wells were analyzed in a separate NEPA analysis. El Prado’s Rio Grande well was drilled and also failed to produce adequate capacity. Thus far, a secondary well site has not been determined. The Rio Grande well was also analyzed under a separate NEPA action.

The only other supply or mitigation well whose exact location has been determined is the Camino del Medio Well, a supply well for the Town of Taos. The other wells all are located within what are referred to as “40 acre grid cells” authorized by the Settlement Agreement. These grids were identified by using an Office of the State Engineer (OSE) hydrology model that later had to be adjusted after a 2016 study by New Mexico Tech Bureau of Geology and Mineral Resources scientists Peggy Johnson and Paul Baer, using geophysics mapping, showed that the hydrogeology of the valley is much more complex than the OSE model. The parties to the Abeyta had to “integrate” these findings into the settlement and review historic pumping data, drawdown, and aquifer recharge. It’s unclear whether these new findings have been incorporated into the Taos IWRS PEA, as the specific site locations remain undetermined.

After the alternatives are developed, NEPA then requires that the “Affected Environment and Environmental Consequences” of each alternative be analyzed. These categories include: water resources; air quality and noise; vegetation and soils; wetlands and floodplains; fish, wildlife, and special status species; cultural and historic resources; Indian Trust assets; socioeconomic; transportation, access, and safety; agriculture and other land use; and cumulative effects.

Reading through the analysis of the No Action alternative is an exercise in redundancy: except in the category of water resources, No Action would result in little or no change in the status quo. It is, of course, in the assessment of water supply that No Action takes on the ominous projection that future pumping of the Town of Taos and El Prado wells will “deplete surface flows, requiring acequia water rights to be acquired and irrigated land to be retired.” In a Table on page 27 there is an estimation of acres within each mitigation well tributary that claims 414 acres of irrigated land would need to be retired if No Action occurs. This is based on a 2017 Shomaker hydrologic study (John Shomaker & Associates of Albuquerque was hired as the primary consultant for the adjudication). It’s also based on Shomaker’s claim of future groundwater withdrawals of 3,520 afy above the current withdrawals of 2,500 afy.

The rationale for the mitigation wells rests on these assumptions, which in turn rests on an assumption that there will be future growth and increased water use. Does this function as a given or an incentive? Would choosing the No Action alternative require that we learn to live within our water means by limiting growth to necessary infrastructure rather than new development like the proposed Tarleton Ranch Eco-Village, a 400 unit development on SH 150? Would it encourage farmers to irrigate only what is sustainable? Would it instigate domestic and agricultural conservation in anticipation of the climate crisis that will inevitably limit future water supply?

The Proposed Action Alternative requires that the state and federal government spend millions of dollars to develop these supply and mitigation wells: drilling, plumping, electric lines, access roads, etc. It will also require millions of dollars to treat the deep water aquifer that “contains water of variable quality, with some potential issues related to arsenic, calcium, magnesium, total dissolved solids, zinc, fluoride, and uranium (ISC 2016; Johnson et al. 2016)” to ensure compliance with the National Pollutant Discharge Elimination System.

The water from the ASR wells would require even more intense treatment: “When surface water is mixed underground with natural groundwater by injecting into an ASR well and stored in an aquifer, possibilities can arise for geochemical reactions involving the surface water, the groundwater, and the aquifer materials (WDNR 2002). Some of these reactions could result in precipitation of solids that could eventually clog the aquifer. Some could result in dissolution of aquifer materials, which could eventually lead to settling at the land surface.” This would require treating the injected surface water to drinking water standards to help safeguard the system “but is not a guarantee that the reactions would not occur.”

In the Cultural and Historic Resources section, the Taos IWRS PEA states that “The current undertaking would not affect any known cultural traditions or cultural traditional properties.” The parciantes on the Arroyo Seco Arriba project, or ASR wells, would beg to differ on this conclusion. In a letter to the OSE the Acequia Madre del Rio Lucero y del Arroyo Seco Commissioner Chris Pieper wrote that either alternative in the settlement, the ASR wells or the reservoirs, “call for the historic Rio Lucero ditch to be replaced with a 6,500 foot plastic culvert pipe. The Rio Lucero ditch was hand dug in 1759 and is a testament to our history with Taos Pueblo. It is also a living stream system supporting a healthy riparian habitat.”

The very last section is called Cumulative Effects. This is a category where so often a NEPA analysis fails to look at the larger—and longer—picture. Cumulative Effects are officially defined as “. . . the impact on the environment that results from the incremental impact of the action when added to other past, present, and reasonably foreseeable actions regardless of what agency . . . or person undertakes such other actions.” In one paragraph the PEA states that the proposed action will not result in any “cumulative effects in combination with other reasonably foreseeable future actions.” In other words, the bureaucrats are saying that spending millions of dollars to develop supply wells to provide water for future growth and mitigation wells to supposedly protect surface water from that growth is not a cumulative effect but a “given.” There is no discretion, there is no questioning, there is no possibility that there can be any action taken other than what the Taos Indian Water Rights Settlement Agreement dictates. No surprise there.

Written Comments on the Draft Programmatic Environmental Assessment are due by 11:59 p.m. MST on April 3, 2020.

The public can provide comments through the following methods:

  • Submit written comments to:
    Bureau of Reclamation
    Attention: Rebecca Braz
    555 Broadway NE, Suite 100
    Albuquerque, NM 87102
  • Email: BOR-sha-AAOTaosNEPA@usbr.gov




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