By KAY MATTHEWS
As expected, the Bureau of Reclamation recently released the Taos Pueblo Indian Water Rights Settlement Mutual-Benefits Project Programmatic Environmental Assessment and Finding of No Significant Impact (aka Abeyta) designating what was the “proposed” alternative in the March 2020 draft as the “preferred” alternative in the final. This alternative provides 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 Arroyo Seco) deep aquifer storage and recovery (ASR) wells or one or more surface water reservoirs. And, just as I reported in March, only two of the 14 projects, the Camino del Medio Well, a supply well for the Town of Taos, and the El Prado Water and Sanitation District’s Midway Well have actually identified sites. 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 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.
The only other alternative included in both the draft and the final is the No Action Alternative, which, of course, was never going to be chosen as it “would not satisfy the purpose of and need for the Proposed Action because it would not comply with Reclamation’s obligation under the Settlement Agreement, Settlement Act, and Partial Final Judgment and Decree.”
Parciantes and domestic water association members on several of the mutual benefits projects have continually opposed the development of the deep wells they are supposed to manage. I contacted Acequia Madre del Rio Lucero y del Arroyo Seco commissioner Chris Pieper who told me, “Our last vote addressed the storage reservoir. We voted 27 to 2 against the reservoir. Previously, we voted 58 to 2 against the ASR wells. The commissioners are all against the projects.” In a letter to the OSE 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.”
I’ve been covering the controversial Abeyta adjudication and settlement (and the Aamodt and Lower Rio Grande adjudications) for many years; I have a chapter devoted to it in my book, !No Se Vende! Water as a Right of the Commons. I’ve had a personal stake in the Abeyta settlement as well: as a member of the Taos Regional Water Plan Steering Committee, and later as chair of the Public Welfare Advisory Committee, I came up against the powers that be dead set on implementing the settlement despite the public—and Taos County’s—reservations about the lack of fairness and environmental impacts implicit in its terms. Parties to the settlement—Taos Valley Acequia Association (TVAA), El Prado Water and Sanitation District, the town of Taos, the mutual domestic associations, and Taos Pueblo—fought any attempt by these committees to provide oversight or restrictions on buying and selling the water rights required to implement the settlement. They were joined by other businesses, especially the real estate industry, and municipalities, that also wanted no restrictions on their ability to move water to facilitate growth and development.
In my La Jicarita analysis of the draft EA I pointed out the deficiencies of the assessment, basically that “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.”
Appendix D of the Final Environmental Programmatic Assessment includes the 35 letters submitted to the BOR during the comment period on the Draft EA. Of those 35 letters, 32 delineate many of the draft’s deficiencies that I pointed out—and many more—and call for the promulgation of a more comprehensive Environmental Impact Study. The remaining 3 letters, from Taos Pueblo, contract attorney John Utton who worked on the settlement, and TVAA attorney Kyle Harwood, ask for clarification or changes in some of the wording of the draft, essentially endorsing its content. In summary, the letters addressed these issues:
• The potential negative impact of deep water drilling of the mitigation and supply wells on existing wells and aquifer health.
• The fact that implementation of the settlement requires the transfer of water rights from outside the affected area.
• The settlement process itself was flawed and failed to adequately represent all water users.
• The settlement failed to incorporate conservation measures.
• There is an inadequate understanding of the complicated geology of the Taos Valley.
• The EA fails to incorporate a realistic measurement of costs for maintenance of the wells.
• The settlement and EA lack a valid assessment of growth potential.
• The EA fails to analyze the effects of the comingling of deep and shallow water aquifers.
• The settlement and the EA fail to address the issue of climate disruption and potential lack of water supply to support anticipated growth and development.
• The EA is essentially the cart before the horse: none of the specific mitigation well sites have been identified, which should be a prerequisite to an EA.
• The EA fails to adequately analyze the settlement’s impact on the valley’s traditional and cultural and resources.
In the Introduction to the EA it states, “The parties entered the Abeyta Settlement Agreement to foster cooperation among all Taos Valley residents regarding the allocation and use of water supplies.” I encourage everyone to read the comment letters for a better understanding of how the lawyers who represented the parties to the settlement, the OSE, and the BOR have failed to address the concerns of so many of the individual water rights owners who will have to live with this flawed agreement that is economically, environmentally, and socially unsound. Here are a few excerpts:
In Letter #8, Amigos Bravos Executive Director Joe Zupan summed up his group’s concerns: “ . . . we do not believe that the PEA adequately addresses potential cumulative impacts for the anticipated projects, does not address the economic viability of the projects including ongoing O & M [operation and management] concerns and does not address the potentially illegal diversion of water from the Rio Grande, a listed Wild & Scenic River. The draft PEA also does not specify that the New Mexico Environment Department shall have a central role in the evaluation of these projects to ensure they are protective of human health and the environment.”
In Letter #9, Mark Schuetz, a parciante and board member of the TVAA writes: “One of the errors in John Shoemaker’s [the consulting hydrologist] extractive ‘solution’ to the perceived need for more water, is that it assumes there is no limit to water availability, so that all that is needed is to more aggressively pursue the supply. . . Without considering conservation of water at the point of use, partnered with active replenishment of the aquifer, the so-called ‘Mutual Benefits Projects’ are a threat to the values that the Parties bargained for, because they will eventually contribute to the exhaustion or contamination of the precious groundwater we all depend on in the Taos Valley.”
In Letter #19, Peter Schoenfeld, a water rights attorney representing a number of clients, points out that “The EA fails to recognize the authority of Taos County to regulate irrigation water rights transfer under Ordinance 2013-9 [establishing the Taos County Water Advisory Committee upon which I served].”
In Letter #4, parciante Jai Cross pretty much sums up what so many of the letters say: “The Abeyta Settlement was set in motion to secure water for Taos Pueblo’s Buffalo Pasture. The two new El Prado supply wells are more than adequate to meet that need. Intelligent water conservation methods (never mentioned in the BOR report) could be employed to fulfill our present water needs. Without large scale development projects, we could thrive here for generations to come without any need for the Abeyta Settlement or deep-aquifer mitigation wells.”