Implementation of the Abeyta Settlement Limps Along

By KAY MATTHEWS

Acequia Madre del Rio Lucero y Arroyo Seco

As I reported in the July 23, 2020 La Jicarita,  the Bureau of Reclamation released the Taos Pueblo Indian Water Rights Settlement Mutual-Benefits Project Programmatic Environmental Assessment and Finding of No Significant Impact (Abeyta) designating 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 the Acequia Madre del Rio Lucero y Arroyo Seco deep aquifer storage and recovery (ASR) wells or one or more surface water reservoirs.

The Acequia Madre del Rio Lucero y Arroyo Seco has declined both the Acequia Storage and Recovery (ASR) wells and alternative storage ponds designated in the agreement. The ASR wells would deliver 100 acre feet per year of water rights from the Rio Lucero during the winter months to the wells and then recover the water from the wells during the irrigation season. The Acequia Madre parciantes and commissioners do not want to see a pipeline replace their historic ditch to bring water from the Rio Lucero to the proposed wells and believe the storage ponds, situated in a populated area, would fall under the state’s high risk category. They also believe the annual costs incurred to maintain either the ASR wells or the ponds are beyond the ability of the acequia.

The water rights from the Rio Lucero assigned to the ASR wells or storage pond in the settlement are winter water rights and without the wells or storage ponds the acequia cannot utilize them. Chris Pieper, an Acequia Madre Commissioner, told La Jicarita that water had previously been run through the acequia during the winter months for animals but had badly deteriorated the ditch with freezing and breakage. As he and other parciantes argued from the beginning, the acequia doesn’t need and can’t handle more water than the 18 percent it is allocated from the Rio Lucero. When the Acequia Madre first declined the ASR wells in 2017, U.S. Department of Justice Bradley Bridgewater (party to the settlement) wrote a letter to the acequia’s former lawyer: “Specifically, the Acequia’s failure to pursue the Article 6.1.1 storage projects will not affect the binding effect of the Settlement Agreement with respect to the allocation of the Rio Lucero.”  It’s unclear, however, what will happen with the water rights that were transferred from a Questa acequia designated for the ASR wells, which were reduced from 91.952 afy to 23.917 afy. As Acequia Madre parciante Bill Woodall suggested in a previous La Jicarita: “Give them back or sell them. We have our water allotment from the settlement that will maintain our traditional uses.”

Taos Friction editor Bill Whaley and Acequia Madre del Rio Lucero y Arroy Seco Commissioner Chris Pieper at the acequia headgate

The Acequia Madre will also forfeit the funding appropriated by the settlement to implement the project. According to Bridgewater’s letter, if the funding is not specifically used for the project stipulated in the agreement, that funding may not be used by the acequia for any other purpose. He states: “The other Mutual-Benefit Project Parties have strong interests in having the funding allocated to ensure full implementation of the benefits they bargained for, including the Mitigation Well System, of which the ASR wells were intended to be a component.”

Status of Other Mutual Benefit Projects

I spoke with the public information person at the Bureau of Reclamation (BOR), the agency responsible for funding the projects, about the current status of the other wells. The Camino del Medio Well, a supply well for the Town of Taos, and the El Prado Water and Sanitation District’s Midway Well were the first projects to actually identify 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. A secondary well site is being studied. Specific drilling sites for the mitigation wells within their current “40 acre grid cells” have yet to be determined and depending upon how much information was gathered in the original Programmatic Environmental Assessment, additional NEPA (National Environmental Policy Act) review will be required (including test wells, piping, etc.)

Only two mitigation wells have applied for and received funding from the BOR: the Rio Grande del Rancho Well run by the Llano Quemado MDWCA (domestic water association); and the Rio Fernando Well, run by the Town of Taos. According to a board member of the Llano Quemado MDWCA, a mitigation test well was drilled near Miranda Canyon in 2017 that proved to be too contaminated and was capped. The MDWCA is currently exploring a site across SH 68 from the Stakeout Restaurant. The water from the well will have to be piped along the highway back to the Rio Grande del Rancho and into the acequias.

I spoke with San DesGeorges, the vice-chair of the Taos Valley Acequia Association (TVAA), which represented almost all the acequias in the settlement negotiations, about the status of the remaining designated wells: Rio Chiquito, run by the Acequia Madre del Rio Chiquito; the Upper Arroyo Hondo MDWCA, and the Upper Ranchitos MDWCA.

According to DesGeorges, the Acequia Madre del Rio Chiquito has been trying to get in touch with the BOR to apply for funding. He does not know for sure the status of Upper Arroyo Hondo or Upper Ranchitos wells, which I previously reported had declined to operate the wells and have thus far not applied for funding. The Upper Arroyo Hondo decision has been particularly contentious, with board members who opposed the well forced out of the mutual domestic and subsequent flip-flops with the existing board on whether to operate the well.

I asked DesGeorges if the TVAA has discussed how to proceed with implementation if the two—or perhaps three—designated operators maintain their opposition to the wells. He said that nothing has been decided, but that the settlement stipulates the parties to the settlement could end up back in court if the terms of the agreement are not met. He admitted that there is a lot of work to be done and the scope of the work may be beyond the capacity of the acequias and mutual domestics to run the federal process; some of the 14 projects may not be implemented.

Although DesGeorges didn’t come on board the TVAA until after the settlement had been promulgated, he defended it as the best alternative to protecting surface water rights and the integrity of the acequias in the Taos Valley: “Renegotiating the settlement is not realistic. It’s what we inherited, and we need to make the best out of that situation.”

I brought up some of the objections to the settlement that have long been voiced by many parciantes in the Valley: “leading people into a cycle of water use and growth that is unsustainable;” the impact on the aquifer with 1,000 foot mitigation wells; the lack of transparency in the settlement negotiations; and the lack of conservation measures and acknowledgment of climate disruption. DesGeorges responded: “We’ve been trying to stop growth in Taos for 500 years.” His basic takeaway is that growth is inevitable, and without the mitigation wells the new demands by water users will force the acequia parciantes to sell their water rights and mutual domestics to buy water rights for new hookups.

This is the theory that was fundamental to the promulgation of the settlement. When DesGeorges told me that Palemon Martinez,  who piloted the settlement for the TVAA, remains as the chair, I was surprised, to say the least. Several people had told me that he had been asked to resign after years of controversy within the organization over the terms of the settlement. So this remains the status quo as we proceed into a year in which water managers warn of “dire conditions.” In a radio interview the New Mexico state soil scientist summarized the situation we’re in: 1) there was essentially no monsoon season last year, in 2020; 2) this winter’s snowpack was below normal in most state basins and much of the snow was absorbed into the already parched mountains; and 3) recent spring snowstorms helped a little but much of that snow quickly evaporated in the warmer temperatures. A total of approximately 32,000 acre-feet of retained Texas debit water were released from El Vado Reservoir between July 18 and September 7, 2020 to prevent impacts to the silvery minnow and catastrophic economic losses in the middle Rio Grande. The Middle Rio Grande Conservancy District postponed water releases for a month this year. Elephant Butte Reservoir is 11 percent full, down from 26 percent last year.

Pending Acequia Water Transfers

Just before going to press with this article I was alerted to three water transfer applications submitted to the Office of the State Engineer, all from surface water rights on acequias to the Llano Quemado MDWCA via El Valle Water and Sanitation District (the district oversees the pipes that deliver water to the wells). I spoke with Sam DeGeorges again to find out if these transfers were under the aegis of the Abeyta Settlement, which would prohibit any of the settlement parties from protesting the transfers and would be offset by the mitigation well. Here’s what he told me (the TVAA had not been informed of the transfers and he had to do some checking):

  • Two of the transfers are not part of the Abeyta Settlement (they bring the currently approved diversion of acre feet per year to 58.31):
  1. 22.02 acre-feet per year (afy) consumptive use (c.u.) from three sub-files, all part of OSE File No. SD-00992, which diverts water from the Acequia del Finado Francisco Martinez from the west bank of the Rio Grande del Rancho in the Rancho del Rio Grande Grant; and
  2. 0.96 acre-feet per year (afy) consumptive use (c.u.) from OSE File No. SD-0609-A (sub-file 1.9.114) which diverts from the east bank of the Rio Chiquito in the Ranchos del Rio Grande Grant.

The move-to point of diversion is an “Exploratory Well” that will be combined with existing Llano Quemado wells to be used within the El Valle Water and Sanitation District. Both transfers were denied by their commissions on the Rio Chiquito and the Rio Grande del Rancho in accordance with the 2005 state statute but were appealed to district court and overruled.

  • A transfer of 5.76 acre-feet per year (afy) consumptive use (c.u.) from OSE File No. SD-0609-A (sub-file 1.9.101) which diverts from the east bank of the Rio Chiquito in the Ranchos del Rio Grande Grant is being examined by the acequia commission to see if it is considered a “footprint” transfer, which comes under the aegis of the Abeyta Settlement.

    According the Llano Quemado board member mentioned above, the MDWCA is also applying to transfer 40 afy from the Molycorps Mine near Questa to meet the needs of the growth west of SH 68 in the mutual domestic and El Valle Water and Sanitation District’s service area. These water rights will have to be offset by the mitigation well under the terms of the settlement.

    Jai Cross, a commissioner on the Acequia de Atalaya in Arroyo Hondo and a longtime critic of the settlement filed a protest of the transfers with the OSE.

 

 

 

 

 

2 comments

    • WordPress, the internet site I use for La Jicarita, chooses the design format, including the font and size. I don’t know of any way to adjust it. If someone out there in cyberspace knows how, please let me know.

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