Stopping the Flood of Damages from Cochiti Dam
The 1,000 members of the Cochiti Pueblo, New Mexico, have always welcomed those visitors who respectfully observe the corn and buffalo dances. The US Army Corps of Engineers, however, is a guest who controls and sometimes floods up to 11,000 acres of the 50,000-acre reservation behind Cochiti Dam. Although the Cochiti Pueblo has legal protection as a federally recognized tribe, it is fighting for its survival.
The pueblo had bitterly resigned itself to powerlessness until the dam flooded the farmland below. Since World War II, pueblo members have combined the old life of farming with the new one of off-reservation employment. Farming is still central to the continuing cycle of songs and dances that holds the community together.
Less than 20 years ago, most of the 19 Indian pueblos of New Mexico, so named by the Spanish explorers 400 years ago for their village and farming lifestyle, were conducting business with the federal government out of a kitchen cabinet in the home of the annually appointed governor. Today, the Pueblo de Cochiti is negotiating with a most unresponsive US government agency, the US Army Corps of Engineers (COE), in an effort to reclaim its land and culture from the troublesome Cochiti dam and lake.
The pueblo first filed a report of damages to farmland from a rising water table in 1976, one year after the dam was completed. The COE installed an ineffective 17-acre drainage system several years later. Not until 1988, more than two years after the pueblo filed a lawsuit for what was then about 300 acres of damage, did the engineers fully admit the dam was causing the problem. Technical studies commissioned by the COE state that all earth fill dams "leak" and that seepage was always expected at Cochiti due to the variable soils beneath the dam. As the water pressure behind the dam has increased with record annual levels of water storage, what was once a high water table has become standing pools of water. In 1987, New Mexico State University professors documented that 550 of the 800 acres of tribal irrigated farmland were so flooded that farming is now impossible. The pueblo's engineering consultants reported in 1988 that 615 acres of farmland and 250 acres of bosque are waterlogged. The seepage continues to spread.
Under congressional mandate, the first negotiations with the COE to settle the lawsuit were scheduled for March 1988. To appreciate the sophistication being required of this people to get what they want from the negotiations requires an understanding of the history of this project and interests it serves.
The Cochiti Dam dispute is a classic drama of tribal rights versus national interests-of the national definition of resource economics against the congressionally protected right of a tribe to maintain its religion and way of life.
The dam was first considered in a river basin study conducted in the 1930s. Site surveys were performed in the 1950s and Cochiti was selected. When the first plan was presented to the pueblo in 1959, the COE said it needed title to 2,600 acres of tribal land, land that the pueblo did not want to surrender. A 1965 letter from the COE to the Bureau of Indian Affairs (BIA) threatened condemnation proceedings if the pueblo did not grant a perpetual easement to 4,671 acres in return for a flat fee of $153,350. The 1965 easement was for 4,070 acres, for which the pueblo was paid $145,200-about $12.50 per acre. The COE also obtained a 7,304-acre free flowage easement from the neighboring US Forest Service - land later returned to the pueblo by a 1984 act of Congress for which the COE pays no fee. The forest service land and 304 acres of tribal land were to be open to recreation. Flowage easements extend up the canyon to include Cochiti's ancestral land, which is now managed by the Bandelier National Monument and the Los Alamos National Laboratories.
The pueblo, along with downstream pueblos and Spanish neighbors, is located in a triangle of growing national energy and recreational interests located at Los Alamos, Albuquerque and Santa Fe, New Mexico. Recent proposals for hydroelectric development at the dam are due to this location and to a 1978 federal law that encourages hydroelectric development at federally operated dams.
Pueblo council member Ivan Lewis, who was a tribal officer in 1965 when the pueblo signed an agreement with the COE giving it an easement for the construction and operation of Cochiti Dam, recently told Senate Select Committee on Indian Affairs Chairman Senator Daniel K. Inouye (D-HI), "I've been living here for over 45 years...We didn't have no choice. We fought for our rights. Back in the 1930s, I had some idea of why the survey was going on. In those years we didn't have no voting voice. We never wanted to give-up our rights. After 40 years our lifeline has been broken."
Completed in 1975, Cochiti Dam is one of the longest earth-filled dams in the world. It stretches across the Rio Grande and five miles of the pueblo's reservation, 50 miles north of Albuquerque. Construction of the dam, in which a steep canyon joins the agricultural flood plain, was authorized for flood control and sediment control in the 1960 Flood Control Act (PL-86-645). According to Bureau of Indian Affairs records, Albuquerque Middle Rio Grande Conservancy District wanted a flood control facility to stem spring floods and promote the efforts to provide drainage in the valley. Additional pressure resulted in a second 1964 act (PL 88-293) adding recreation to the purpose of the dam and providing for a minimum lake area of 1,200 surface acres.
The corps has the right to submerge up to about 11,000 acres of tribal land providing that the flood waters are released by 31 March of each year. New Mexico has experienced a decade of heavy mountain snowfall, resulting in record levels of water storage behind Cochiti Dam each year. Maximum capacity was almost used in 1987. There are other dams along the Rio Grande, but they are more strictly monitored by public interest groups than is Cochiti. New Mexico hates to let water run to Texas, according to the COE; extra water, therefore, ends up in Cochiti Lake.
In the authorizing legislation, the tri-state Rio Grande Compact was given approval authority for lake releases. Although Cochiti Dam is not an agricultural dam, a 1986 university-sponsored conference on Rio Grande water management made it clear that the compact attempts to store extra water for farming at Cochiti. The complexity of water management cannot be covered in this article except to point out the fact that Cochiti Pueblo's concerns do not receive priority and that the storage of water behind Cochiti Dam adds to the problem of flooded farmland below the dam.
Public Interest vs. Pueblo Interest
The arguments for the construction of Cochiti Dam were the same as for most national water resource development projects throughout the world enhancement of agriculture, recreation and wildlife; economic development for the region; and protection of life and property from seasonal floods. Plans presented to the pueblo ultimately obtained approval, although the older council members who made this decision say they did not understand the immensity of these plans nor their own choices.
Between the time that the dam was authorized and the time it was completed, the development plan had grown to include an entire retirement city. The scenic canyons combined with a lake close to urban centers were the basis of Bureau of Indian Affairs and Corps of Engineers master plans. In 1969 the pueblo signed a 99-year lease with Great Western Cities, Inc. for the development of 6,500 acres of property into a recreational city of 50,000 persons, including recreational facilities such as a golf course and marina. In 1985, the corporation declared bankruptcy and a pueblo-owned corporation is now managing what remains, a town of about 300 residents.
An environmental impact statement was not prepared for Cochiti dam and lake until 1974, one year before the dam was completed. The statement did not mention the known fact that seepage would occur. The COE stated that urban development would have an impact but left the assessment responsibility to the BIA, which passed it back to the COE. The less than 100-page statement did predict several impacts which have since occurred:
1. Flooding of hundreds of archeological sites, ancestral villages of the Cochitis.
2. The "bathtub ring" of dead vegetation and soil erosion occurring around the edges of the vacillating sized lake; sloughing of river banks.
3. Destruction of plant and wildlife habitats due to construction and the large number of visitors to the public use areas and the 6,500-acre urban lease. Trespassing on sacred sites was predicted as a problem.
The environmental impact statement proposed no actions for mitigating these impacts; instead, it stressed that the values of recreation, wildlife and wetland enhancement and the protection of the flood plain outweighed any negative impacts. It also stated that no alternatives should be considered because the dam was already under construction. It is clear from BIA records that the BIA and the COE assumed that what was good for national water resource development and private recreational development should also be good for Cochiti Pueblo.
A 1965 memorandum of agreement gave the COE the right to use the 4,070-acre easement as it needed. It returned to the pueblo the right to manage the 304-acre public use area within the easement, provided it followed all COE guidelines. A 1975 amendment provided for the pueblo to assign management to the developers of the urban area, but the pueblo remained responsible to the COE. The stated assumption within the master plan was that the mere attraction of visitors and residents to the lake would build the pueblo economy and, therefore, the pueblo did not need to be compensated for the continued presence of the facility on its reservation. Social impact statements were not common in 1974.
Studies by the state of New Mexico Department of Natural Resources show that communities that benefit from such water resource development projects are those that already have a strong retail sector. Rural communities, on the other hand, suffer increased crime rates and other problems, with no way to afford police departments and other consequences of growth. Cochiti was not prepared for the one million annual visitors to Cochiti Lake; and the COE takes no responsibility for restricting these visitors to easement land. The pueblo officials feel overrun, unable to benefit from the dam. The pueblo receives no revenues to pay for policing its land and repairing the fences cut by trespassers.
The cultural impacts of development are difficult to list. Council member Willie Martin simply says, "This is really getting to our heart. When I go to the fields I have tears in my eyes. The last time I went down there, my tractor went down in the mud to the axle; and I haven't been back." Cochiti people are taught to give to and protect the land so that they in turn will be protected. They are now powerless to fulfill a sacred responsibility, and without farming have no way to teach this responsibility to their children. The dam has cut the pueblo off from the canyon where its ancestors lived, and has destroyed and flooded shrines. Not all the land was farmed at the time the seepage began; but the dam has torn the fabric of the community from the loom, so to speak.
The council's efforts to obtain economic benefits for the pueblo members have decreased as cultural threats have grown. By the time the seepage lawsuit was filed in 1985, the pueblo had turned the management of the recreational areas back to the COE. The pueblo, then staffed with only an appointed governor, his lieutenant, a paid secretary, an administrator and an accountant, did not have the management structure necessary to capitalize on the one million visitors to the lake nor to pressure the COE to prevent environmental damages above the dam. The tribal council, comprised of previous officers, has turned its attention almost solely to restoration of the farmland and the safety of the dam.
During a September 1987 presentation to the COE representatives. Senator Inouye summarized the problem: "The dam was not requested by the pueblo, and it has no benefits to it...The US Government has a responsibility to these people."
The Challenge for Tribal Government
Until the pueblo obtained the support of Inouye and other members of Congress, the national office of the COE had given the pueblo only two choices: (1) drop the lawsuit and trust us to study the problem, or (2) fight us and we will continue to challenge the right of a local community to sue the federal government for a project deemed to be in the national interest of flood control. The lawsuit is not enough. The Pueblo de Cochiti has to become a sophisticated strategist of a team of politicians, professionals and attorneys in order to stand a chance of reclaiming its farmland. The seepage problems are documented, but the broader environmental impacts have not yet been addressed with the COE.
Although the COE and the pueblo discussed the problem of waterlogged farmland in 1984, the pueblo filed a lawsuit to force the issue before the statute of limitations expired. The lawsuit claims monetary damages; the pueblo, however, has told its attorney and the US Department of Justice attorney assigned to the case. Ray Hamilton, that it does not want only money. It wants the COE to assume responsibility for protecting and restoring its farmland for the same perpetuity that the COE was granted in its easement for operating the dam. The pueblo wants replacement land for those lands that cannot be restored. The 4,070-acre easement did not include any of the farmlands below the dam.
The courts and the COE have taken more than three years to agree that the pueblo has a valid complaint and to set a date for the first negotiations. To get this far required the skeleton staff to coordinate the efforts of Congress, the Bureau of Indian Affairs and the attorneys and technical consultants. The Albuquerque District COE has tried to work with the tribe but is dependent on the approval of Dallas and national headquarters. When the lawsuit was filed the Department of Justice took over and the Washington office of the COE refused to spend $176,000 of congressionally appropriated funds for a feasibility study for draining the land unless the lawsuit was dropped. Using the assistance of the press, the congressional delegation and a tribal member experienced in national politics, the pueblo was able to designate COE appropriations for the feasibility study. The BIA provided funds for the tribe to hire its own hydrologist and informed the COE of its national trust responsibility.
Fixing the Seepage Problem
The COE's feasibility study recommends eliminating several proposed drainage alternatives on the grounds that they are not economically feasible - that is, the costs to repair exceed the benefits. The COE's normal operating procedure is to buy affected land. A second option it has used with other Indian reservations is to pay for market value for an additional easement giving it the right to flood the land. Recently the Tohono O'Odham (Papago) tribe was awarded $10 million in damages for flooding of their lands, but they did not regain those lands. The pueblo's village and history are tied to the land - easements and sales are out of the question. The pueblo wants the unprecedented: for land that has a high sacred but low market value, it wants the government to invest money to drain, reclaim and maintain it - defying the standard government cost-benefit analysis. The tribal council also wants a voice on the Rio Grande Compact Commission to decide when and how much water is stored behind the dam.
The COE draft 1987 Reconnaissance Study and the tribe's study by Keller and Bliesner Engineers show there is no permanent guarantee for stopping the rising water table other than draining the lake. At a cost of between $4 million and $5 million, a combination of drainage systems and other measures could lower the water table to perhaps three feet below the surface, sufficient for farming some of the land. According to the COE study, the maintenance costs would exceed $35,000 per year, and the dam is expected to be in operation for 50 to 90 more years. Southwest Research and Development Company, at the New Mexico State University, estimated crop losses and damages through 1991 at $2.6 million. Although the land is irreplaceable to the pueblo and contains several shrines, the market value against the cost of reclamation would not result in a positive figure.
The painful tradeoff between cultural survival and economic survival arises in another way. The Bureau of Indian Affairs has suggested that the pueblo try to capitalize on hydroelectric development as a way to pay for maintaining a drainage system. The Federal Energy Regulatory Commission (FERC), despite the objection of the pueblo, recently granted a permit to a Colorado company to study the feasibility of installing a plant at the dam outlet - also a site of a fishing and a proposed bald eagle preserve. The company has asked the tribe to consider joint ownership. One of the difficulties is that the outlet structure has already cut through a rock sacred to such pueblos as far away as Hopi in Arizona. And with the problems the pueblo already faces the mood of the council is not to add more development with its unexpected impacts.
Southwest Research and Development Company has advised that new land might be developed for farming at a cost of $5.3 million; but the pueblo would want both replacement land for farming and some restoration of the old land for visiting sacred sites and farms. During initial exploratory meetings, Department of Justice Attorney Ray Hamilton suggested a lump sum payment might be arranged with which the pueblo could install its own system or develop new farmland. Congress is also considering legislation that would provide funds to the COE to install one of the recommended drainage systems. Either alternative leaves the tribe with the responsibility of maintaining a system connected to a federal dam that is operated without its control.
Political and press support has been essential for the pueblo at every step. During his visit to the pueblo in September 1987 to meet with the council and representatives of the COE and the Department of Justice, Senator Inouye reminded his audience that he is on the public works committee that funds the operation: "If the dam affects the pueblo's well being and livelihood into the future generations, then I think that the US Government should do something about it." In reference to the COE's insistence that the lawsuit should first be dropped, he said, "My position is that if the suit is withdrawn and negotiations fail then the Indians are sucking hind tit." New Mexico's congressional delegation supports the pueblo, but they also represent the interests of Albuquerque and downstream farmers who want water stored at Cochiti. Also, the national political environment is one of reduced, not increased, spending.
Ironically, the COE has said that if it takes action, federal policy of protecting wetlands might come before protection of farmland. It suggested designating 350 acres of waterlogged farmland as a wetland and eagle resting area, implying that the federal government would rather protect the eagles than the people who worship them.
Although the COE asked Congress not to proceed with oversight hearings to be held by the Senate Select Committee on Indian Affairs and the Senate Committee on Environment and Public Works, the pueblo testified in March 1988. Tribal member Regis Pecos commented, "The COE thinks we should put down our weapons and come to the table, but the COE cannot obligate funds to fix the problem with congressional support - even a cash settlement has to come from Congress." He hopes by establishing a congressional record, a settlement can be "packaged" that would provide for some land to be rehabilitated, other replacement land to be developed and monies provided to maintain a system.
The pueblo gains, loses and then gains ground. Last fall, council member Romero expressed frustration when he said, "I came back to the pueblo the year that the gates closed. There is no say for the pueblo in the decisions of the Rio Grande Compact, FERC, and the Corps." Presently the pueblo has the upper hand, at the cost of draining its administrative and financial reserves and postponing many other community needs.
A fundamental difference of value and responsibility exists between the pueblo and the federal government. Congress has the dual responsibility of cutting the budget and answering to all US citizens while maintaining a trust responsibility toward Indian tribes. On paper, this trust responsibility extends through agencies of the federal government, including COE. In practice, national water resource development projects have been approved based on a vague notion of national interest, sited where the political opposition is the least. The pueblo has a real responsibility to its place, ancestors and future generations - a cultural responsibility so strong that the present existence of the dam means to some that they are no longer blessed and protected. The political and legal process within which the tribe must state its case weighs alternatives based on costs and benefits, not on spiritual absolutes.
The dam stretches an irreversible shadow across the land. For the pueblo village located below the dam, the dam is a black shadow that divides its view from the canyon and mesa homes of the ancestors and spirits, and grows with the seepage that has ruined more than 600 acres of historically cultivated farmland. It marks the increasingly muddled separation between the lakeside urban development and playground located above the dam and the traditional village life below. The road below the dam carries Cochitis to their urban jobs; the road across the top of the dam carries in boaters and fishermen. The dam divides this historically consensus-minded village into two camps - those who suggest taking advantage of the development opportunities offered by visitors and the possibilities of hydroelectric development and those who believe any compromise for benefits is treason to the life that has always sustained them. However, all agree the land must be restored and the village protected.
The dam marks the dichotomy between a hypothetical national interest that drives US water resource development policy and a local intimacy with the land and water cultured over hundreds of years. The dam symbolizes everything lost; the lawsuit symbolizes everything to be continued. In this atmosphere comes the effort to take a stand in negotiations with the Corps of Engineers.
Support for a solution to the seepage should be addressed to: E.R. Heiberg, III, Lieutenant General, US Army, Chief of Engineers, Department of the Army, Washington, DC 20314 or US Senator Daniel K. Inouye, Chairman, Senate Select Committee on Indian Affairs, 838 Hart Senate Office Building, Washington, DC 20510-6450, attn: Alan Parker.
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