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Subject: Comments of Francis West
I have compiled some of Francis West's comments that I think are relevant to the Aamodt Suit and some specific notes about the Mutual Domestics. Francis West is a highly regarded hydrologist who used to live in Chupadero. He worked for the State Engineers Office but is now retired.
-Paul
It appears that Senator Pete agrees with repartimento, but I would doubt that he is even aware of what Judge Mecham's opinion stated that the legal precedent had been set by Spain and Mexico that when shortages occur that repartimiento should be invoked. I would suggest that a copy of the opinion be sent to the Washington office and that someone (Pete Bickely has good contacts) hand deliver a copy to his Santa Fe office. Senator Pete's support could be very valuble because the Indians are getting politcal support from the BIA and the Federal Court. The Senator could cut off the bribe money that is behind the bogus regional water sys tem and get the adjudication back to just that rather than a social crusade to right the wrongs that have been done to the Indians.
This raises the question of who are the Indians? It is well known that the Navajo took the land from the Anaszai. Hooton (1930) in his study of the Pecos ruins concluded that the skulls of the long-heads preceeded those of the subsequent round-heads and that the long-heads appeared to be the equivalent of European skulls. So who took the land away from whom?
In that it is not clear who injured who perhaps if we are interested in social just we would just by default implement repartimento. Or as they say " caint we all just git along"
Francis
Yes wells affect the river, but the full effect will not be realized for many years down the road. It aooears to me that what is being proposed is that full payment must be made now for what will happen decades later? Furhter more there are not shortages in all of the years, just some years. So again you must pay now for the years that have not even happened?
Since the fire it is not at all clear that there will be shortages because of the increased supply caused by the fire. This increased supply may well be more than you are proposing to take from the Rio? Also another thing has happened to increase the recharge and the supply, the pinions have died. At a Jemez y Sangre workshop about three years ago white papers were given with estimates of the increased recharge that would be generated by the thinning of trees. However, it was decided that it is too expensive to thin. WRONG! All you need is bugs. I threw these papers away when I moved, but you may be able to get copies from Steve Wust, SF Cty hydrologist or DB Stephens the consultant who did have a web site that you could download them. Come to think of it they were supposed to file a copy in SF library?
Francis
The middle Rio Grande does have some old water rights, but how old? There has never been a Hydrographic Survey to establish their quantity or priority. In the 1930's the state engineer permited the Middle Rio Grande Consevancy District something like 130,000 acres of irrigation. The MRGCD has yet to prove up on this permit as required by law and therefore are not relevant untill they are reconized by the OSE. All of the surface water rights above Otowi have priority dates of pre-1907, i.e. they are senior to MRGDC permited rights.
Francis
The concept of a futile priority call was brought to my attention by the Cimarron Watermaster. He said that the court ordered that upstream junior water users to be shut off but the Master explained to the judge that even if that were done the senior water users would still not recieve water and that the action would be futile. The judge agreed and rescinded the order.
The OSE can give you his phone # and maybe even an e-mail. You might be able to get it off the OSE web site.
The hydrologist for the indians, Hearne, testified that the effect on the surface water of a pumping well would be about 15% in 50 years. This effect occurs logarithmically so one can easily extrapolate to 500 years at 30% or 5 years at 7.5%. (Paul's note; does this include septic return flow credits?)
Francis
Came across an article on the pre- and post-fire flood flows in the Los Alamos area.
Post-fire flood flows were about 160 times the pre-fire flows in the first year.
In the second year flows decreased to 10 to 15 times.
However, even after 22 years the flood flows were still greater than pre-fire.
Availble at nm.water.usgs.gov/publications/abstracts/wrir02-4152.pdf
Francis
I have no doubt that the SEO would give you flak over the Dewatering Act because you would be upsetting their comfortable bureaucratic world. Black's Law Dictionary defines mineral as "Any vauble inert or lifeless substance formed or deposited in its present position through natural agencies alone, and which is found either in or upon the soil of the earth or in the rocks beneath the soil. Barringer & Adams, Mines, p. lxxvi. (court reference)
" Any natural constituent of the crust of the earth, inorganic or fossil, homogenous in structure, having a definite chemical composition and known composition. See Webster; Cent. Dict."
Section 4 of 12-A indicates that this applies to "All cases involving an appropriation of water for benefical use". As I understand it the Proposed Regional Water System would supply water for benefical use? I know of only one instance where "depressurizing wells" ( as all wells are) were used to dewater an aquifer to a depth of 700 feet and let the water pumped just run down the arroyo with no beneficial use.
Yes one would need to go into court prepared for flak!
The SCS modified BC mehtod was used to calculate the water demand of the irrigated acreage. Brian Wilson, now retired did this. The only Brian Wilson in the phone book is 474- 4068. Brian is a generally very helpful person. However, this only establishes demand, what has changed, due to the fire, is supply. Keep your eye on the dougnut, not the hole!
Francis
My main argument was because Judge Mecham had concluded that under the Treaty of Guadalupe Hidalgo the water rights of the pueblos had been quantified by Spanish and Mexican law and because this procedure included a protocol known as Repartimento that senior water rights were limited during times of water shortages in consideration of maintaing water for community purposes.
We then discussed that the ground water model used errroneous orientation of the strike of the dipping beds. Also the model is conceptually flawed because it is now known that aquifer storativity and permeability are not constants but are variables.
Next we discussed the fact that the surface water supply used in the calculations of the water budget has increased due to the fire in the upper watershed.
Most of the questions asked in the e-mails can be answered better by the Water Supply Study of the Jemez y Sangre Region. Copies of this were supposed to have been placed in all of the libraries of the towns in the Espanola Basin. Also Mary Hellen Follingsted of the ISC has a copy.
As to the flow in the early days see USGS Professional Paper 372-B , General effects of drought on water resources of the SW. This data shows a general decline in flow of about 5-6% / year at that time.
As to variability of flow in the different phases of the PDO 1947-72 to 1973-99 it is about 36%.
Francis
read the report,but I could not acess the appendices, which is where the meat is, however here are a couple of comments.
The Team did not include any civilains - as you alredy pointed out. Much of the technical work such as modelling the hydrology was done by BIA contractors.
The Santa fe County attorney seems to have a lot of input and seemed to be advancing their effort to acquire abandonded water rights that they need desperatly for their system in south SF Cty.
The report mentions the use of salvage/recharge wells. The State has a law that regulates the use of ground water storage. So this brings up again the question of will State law apply?
The map indicates as you said that Chupadero & Rio en Medio will be served by a field of deep wells rather than just using existing wells. Not much of a rationale for that?
After looking at the reports and studies that have been done it appears that things are still where they were a decade ago when we were negotiating directly with the indians. In other words they still claim all of the water, both surface and ground! This does not seem to square with what Judge Mecham's ruling that the indian rights were quantified by Mexican/spanish law and which law was recognized by the Treaty of Guadeloupe Hidalgo. During our negotiations we argued this and that under that law when there are shortages the concept of repartiemento can to invoked for the sharing of water. So in this intance prioities do not apply because of this previous law.
As far as the ground water modelling studies I have already stated that the model used is basically flawed.
Francis
I am still having computer prolems so I have not been able to download the settlement, thus I will just respond to your concerns.
You refer to data used to determine existing use/rights. I f the data on the priority dates was available it does not appear that it was used, because all non-indian wells are treated the same, i.e. they are all offered 0.7AFY under their tube-sock theory that one size fits all. Under state water law when rights are to be curtailed for a priority call to provide water to a senior user, the most junior are shut down first and then older rights untill the amount of water estimated to satisfy the call is satisfied. Yes this is a ton of work but that is the way the priority system works and if I understand the court they say priorities are paramount. This seems to bring up the question is state law going to be honored or not? The State Engineer claims that his authority undedr state law can not be deminshed. So the settlement seems to violate state law by treating pre-basin wells the same as wells drilled yesterday.
NM water law places the burden of proof on the applicant for a change in place or purpose of use to prove that the change will not cause impairment. Under 72-12A when the Engineer finds that ground water mining will take place (and all wells cause ground water mining- basic fact) the engineer must determine if impairment might occur and if so what the applicant's plan for replacement is?
If one is going to have a regional water authority it should have a clearly stated rationale. One could argue Pojoaque basin has little incommon with Santa Fe basin in that SF does not have indian water rights. On the other hand the Abbott suit on the Santa Cruz is just like the Aamodt suit. From an aquifer point of view the regional aquifer extends from El Dorado to Velarde so this should be the reasonable unit for common adminsitration. The current proposal just cuts out the middle of the aquifer.
It sounds like you are developing a good insight to all of this hydro-socio-legal mess.
Francis
When we were negotiating with the indians in the 90's, we were earnestly trying to settle, but Tesuque was totally intransigent. From whar you say the judge sounds like he is open to questioning of the proposed secret settlement because you were not represented. I would suggest that you counter-propose that wells be drilled to supply the surface water shortages of the indians After all this is problem #1, not the supplying of new subdivisions. Also as I mentioned earlier there should now be a greater supply of surface water as a result of the watershed clearing by the fire. This question of what the supply is now with the changed hydrologic conditions?
When they say deep wells I assume it is a euphemism for high-capacity wells. In aquifers such as exist in the basin, high-capacity wells tend to fail quicker than wells which are pumped at more moderate rates and being next to the mountain front there will be more fissures opening up. This of course would increase the risk at Nambe Dam, but I supposed that the indians can worry about that? This risk is not recognized by many ground water hydrologists because they are not conversant with the state of the art.
Francis
As we discussed on the phone (5/29/04) I will try to recollect the hydrology of the Pojoaque Basin as I testified to in my deposition in the late 80's as an expert witness and as Chief of Hydrology for the State Engineer Office. Since then some of the conditions and discussions have changed, but the basic relevant facts have remained the same.
The Indians still have the senior water rights which amounted to something like one third the amount of the non-Indian water rights. When one calculates the amount of surface water required to irrigate the senior water rights during a dry year, there was only enough water for the senior water rights. Some, but not all, of the irrigators had supplemental wells which assured a full supply at all times. It was suggested at that time that perhaps all that was needed to avert shortages to the senior rights was that supplemental wells be drilled. A full annual supply for the Indian rights can be estimated by multiplying their acreage of around ~900 acres by the consumptive use of about ~ 2 (1.84) acre-feet per acre = 1,800 acre-feet per year (AFY). The USGS (Francis Koopman) estimated that there is about 47 million AF of ground water in storage under the Pojoaque Basin. This could provide a full supply for 26,111 years and thereby avoiding the necessity of the Indians having to make a priority call on the surface water. This estimate does not include current domestic use which all comes from ground water. The Jemez y Sangre Planning (JYSP) report estimated this amount to be around 600 AFY. So adding this to the 1,800 AFY for a total ground water withdrawal of 2,400 AFY, the water in storage would last 19,583 years.
The government hydrologists testified that pumping would reduce the flow of surface water by about 15% in 50 years based on their computer model. I was prepared to testify that their computer model was conceptually flawed and thus any use of it would also be flawed. Since then, technical advances in ground water hydrology have rendered the USGS "Hearne" model obsolete. Currently available ground water theory would reduce the estimate of the effects of 50 years of pumping to something like 8% (192 AFY) rather than the 15% (360 AFY). However, in either case the amount does not appear to be a critical amount. The JYSP estimates that the average annual amount of surface inflow to the basin is about 10,000AFY. (192/10,000 = 2%) During drought years the surface water inflow may decrease by something like 40%.
At the outset, I emphasized that the primary problem and barrier to any settlement was that during certain dry years the Indian surface water rights would not have a fully supply. Yet when I read recent articles in the paper, the problem is portrayed as how do we provide domestic water to new developments? The Aamodt Suit was filed as a water rights adjudication suit the purpose of which is to quantify water rights not to solve the ills of the world, which is not to say that we do not need it! The proposed projects admit that they do not have any of the water rights required for a regional domestic water system. The articles also speak of large-capacity supply wells. From a ground water reservoir management standpoint such wells are the worst possible way of developing a supply. The more concentrated the withdrawal is the quicker and the more severe the negative effects are on the ground water reservoir. The Buckman wells are a proof of this.
Francis
Some of the comments that I see reminds me of a book that I referenced in a report to SF County in 1994 the Water Resource Inventory in which I cited Karl Whittfogel In "Oriental Deapotism" who said said if you control the water you control the people!
I do not recollect that when negotiations were directly with the indians that the use of ground water to offset surface water shortages was ever discussed in a meaningful manner. Apparently it was never discussed during the secret attorney negotiations either, probably because attorneys do not understand hydrology. Clearly ground water can be used to offset shortages and thereby eliminate any need to make a priority call on the non-indians. So it would appear that if this solution is not used, then the intent of the proceedings is to inflict the maximum damage possible?
As to the use of dams I squashed the proposal to increase storage in Nambe dam by raising questions about the safety of the dam. I showed the BurRec representative at the meeting the existence of several young faults in and around the dam, a situation that usually brings into question the safety of the site for a dam. The BurRec wrote a letter back that they would not consider raising the dam and if they had it to do over would probably not have built the dam in the first place.
I suggested that an alternative source of increased runoff would be to thin the forest back to it's natural state before the Forest Service stopped the natural thinning action of normal fires in the forest. Nambe Governor Yates said no way! Since the forest has been thinned by the recent fire. It is well known that after forest fires surface runoff is always increased. Based on the experience at Los Alamos it could be argued that the current watershed conditions on the Nambe will be enough so that shortage conditions will not occur. The increased runoff at Los Alamos caused them to build a 70-foot high dam in order to control the increased runoff. The increased runoff could be estimated by a forest hydrologist preparing a water budget of the watershed before and after the fire. There is no question about more water being produced, it just remains to quantify the amount. In other words the old water budget used to justify the making of a priority call by the indians is no longer valid because of the changed conditions.
I have worked with more attorneys than I care to remember and most of them could not grasp physical concepts. As I mentioned Em Hall was the best one that I worked with, but also high on my list is Karen Aubrey of Santa Fe.
Francis
I assume that water banking has nothing to do with the settlement? In general I think the water banking concept is a scam, at least as it was proposed. I have not followed it for several years. Acequias have always had the power to do most of the things proposed by banking.
Francis
As we discussed on the phone (5/29/04) I will try to recollect the hydrology of the Pojoaque Basin as I testified to in my deposition in the late 80's as an expert witness and as Chief of Hydrology for the State Engineer Office. Since then some of the conditions and discussions have changed, but the basic relevant facts have remained the same.
The Indians still have the senior water rights which amounted to something like one third the amount of the non-Indian water rights. When one calculates the amount of surface water required to irrigate the senior water rights during a dry year, there was only enough water for the senior water rights. Some, but not all, of the irrigators had supplemental wells which assured a full supply at all times. It was suggested at that time that perhaps all that was needed to avert shortages to the senior rights was that supplemental wells be drilled. A full annual supply for the Indian rights can be estimated by multiplying their acreage of around ~900 acres by the consumptive use of about ~ 2 (1.84) acre-feet per acre = 1,800 acre-feet per year (AFY). The USGS (Francis Koopman) estimated that there is about 47 million AF of ground water in storage under the Pojoaque Basin. This could provide a full supply for 26,111 years and thereby avoiding the necessity of the Indians having to make a priority call on the surface water. This estimate does not include current domestic use which all comes from ground water. The Jemez y Sangre Planning (JYSP) report estimated this amount to be around 600 AFY. So adding this to the 1,800 AFY for a total ground water withdrawal of 2,400 AFY, the water in storage would last 19,583 years.
The government hydrologists testified that pumping would reduce the flow of surface water by about 15% in 50 years based on their computer model. I was prepared to testify that their computer model was conceptually flawed and thus any use of it would also be flawed. Since then, technical advances in ground water hydrology have rendered the USGS "Hearne" model obsolete. Currently available ground water theory would reduce the estimate of the effects of 50 years of pumping to something like 8% (192 AFY) rather than the 15% (360 AFY). However, in either case the amount does not appear to be a critical amount. The JYSP estimates that the average annual amount of surface inflow to the basin is about 10,000AFY. (192/10,000 = 2%) During drought years the surface water inflow may decrease by something like 40%.
At the outset, I emphasized that the primary problem and barrier to any settlement was that during certain dry years the Indian surface water rights would not have a fully supply. Yet when I read recent articles in the paper, the problem is portrayed as how do we provide domestic water to new developments? The Aamodt Suit was filed as a water rights adjudication suit the purpose of which is to quantify water rights not to solve the ills of the world, which is not to say that we do not need it! The proposed projects admit that they do not have any of the water rights required for a regional domestic water system. The articles also speak of large-capacity supply wells. From a ground water reservoir management standpoint such wells are the worst possible way of developing a supply. The more concentrated the withdrawal is the quicker and the more severe the negative effects are on the ground water reservoir. The Buckman wells are a proof of this.
Francis
I do not recollect that when negotiations were directly with the indians that the use of ground water to offset surface water shortages was ever discussed in a meaningful manner. Apparently it was never discussed during the secret attorney negotiations either, probably because attorneys do not understand hydrology. Clearly ground water can be used to offset shortages and thereby eliminate any need to make a priority call on the non-indians. So it would appear that if this solution is not used, then the intent of the proceedings is to inflict the maximum damage possible?
As to the use of dams I squashed the proposal to increase storage in Nambe dam by raising questions about the safety of the dam. I showed the BurRec representative at the meeting the existence of several young faults in and around the dam, a situation that usually brings into question the safety of the site for a dam. The BurRec wrote a letter back that they would not consider raising the dam and if they had it to do over would probably not have built the dam in the first place.
I suggested that an alternative source of increased runoff would be to thin the forest back to it's natural state before the Forest Service stopped the natural thinning action of normal fires in the forest. Nambe Governor Yates said no way! Since the forest has been thinned by the recent fire. It is well known that after forest fires surface runoff is always increased. Based on the experience at Los Alamos it could be argued that the current watershed conditions on the Nambe will be enough so that shortage conditions will not occur. The increased runoff at Los Alamos caused them to build a 70-foot high dam in order to control the increased runoff. The increased runoff could be estimated by a forest hydrologist preparing a water budget of the watershed before and after the fire. There is no question about more water being produced, it just remains to quantify the amount. In other words the old water budget used to justify the making of a priority call by the indians is no longer valid because of the changed conditions.
I have worked with more attorneys than I care to remember and most of them could not grasp physical concepts. As I mentioned Em Hall was the best one that I worked with, but also high on my list is Karen Aubrey of Santa Fe.
Francis
About mutual domestics;
Authority for the state to condemm the water rights and the physical system would need to come from a court order, because I do not recollect any authority under state law?
It would seem that the water systems have not agreed to the settlement if condemnation is required? Again this seems to be quite far afield from an adjudication of water rights. Sounds like it all needs to be apealed to a higher court.
Francis
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