New Mexico Acequia Association

By Paula Garcia

(Published as an Op-Ed in the Santa Fe New Mexican on September 23rd, 2007)

In the United States, acequias are an ancient form of water governance unique to New Mexico and Southern Colorado.  The form of acequia governance that endures today in New Mexico has been practiced for hundreds of years in the historic communities of the state.  In fact, New Mexico is the only state that has statutes dedicated to acequia governance.  Since the mid-1800s, New Mexico has carved out a unique place for acequias with respect to local governance.  

After the Treaty of Guadalupe Hidalgo was signed in 1848, New Mexico became a territory of the United States.  In the years that followed, many acequia customary practices were codified into the laws of the territory, many of which later became state law.  These included provisions for elections and water sharing.  Other customary practices and norms were confronted with the coming of statehood.  Under Spanish and Mexican legal tradition, water rights were inseparable from the land.  However, after statehood, water rights were treated as transferable thereby opening the gate for the commodification of water that is occurring today. 

For many years, acequia leaders have understood the implications of the transferability of water rights.  Since the 1980s, acequias have been active in filing protests with the State Engineer arguing that water transfers left unchecked could unravel the acequia cultural tradition and the physical function of the system.  Eventually, the New Mexico Acequia Association was formed in response to the need to protect acequias from unprecedented demands to move water from rural, agricultural communities to other uses. 

In New Mexico, there is growing awareness that water scarcity looms as one of our greatest challenges.  Despite assumptions that the solution to water scarcity is the transfer rural water rights to development, there is no silver bullet to the water crisis.  Water transfers have hydrological and socioeconomic consequences.  The Legislature requires in state statute that the State Engineer must consider impairment of existing rights, public welfare, and conservation.  In addition, in 2003, the Legislature authorized acequias to approve or deny a water transfer out of an acequia based on a finding of whether the transfer may be “detrimental to the acequia or its members.”  In doing so, the Legislature seized a historical moment to protect the acequias.

The 2003 law was a historic affirmation of the significance of acequias and a reconciliation of the ancient view of water as a community resource with the modern laws that define water rights as transferable.  Acequias are recognized in New Mexico as local governments and the procedure for water right transfer decisions, including provisions for appeal, is similar to that for county land use decisions.  The current law does not preclude transfers but only democratizes decisions over transfers at the level of local governance. 

Now the 2003 law is being challenged.  This is a crossroads with regard to New Mexico water policy.  The decision by the courts will have implications for acequia for generations to come.  The New Mexico Acequia Association contends that water policy is social policy.  The extent to which the law will allow acequias to have some measure of governance regarding water transfers is significant.  At stake is the continued survival of land-based culture and the feasibility of revitalizing agriculture and local food systems. 

For our leadership, protection of our way of life and the acequias is a lifelong vocation and a struggle that will transcend many generations.  In this chapter of the ongoing story, we are hopeful acequia laws will be upheld.  It would be a continuation of a long tradition in New Mexico of recognizing the deep historical roots of the agricultural and community traditions that make this state unique. 

Members of the Water and Natural Resources Legislative Interim Committee interrogated State Engineer John D’Antonio with hours of questioning at a recent meeting. The monthly meeting of the committee, held in Taos on August 28th and 29th, had a strong focus on acequias. An estimated 80 acequia and mutual domestic leaders attended the meeting to hear three of New Mexico’s top acequia attorneys present a scathing critique of the new Active Water Regulations Management (AWRM) regulations promulgated by the State Engineer and a presentation by the New Mexico Acequia Association on the impacts of water markets to acequias, traditional agriculture, and rural water security.

The AWRM regulations set forth a management framework that brings the state’s water under more direct management control of the State Engineer through water masters and metering. This has raised many questions about the historic role of acequias as local governments that manage water. The regulations purportedly intend to protect senior water rights but in effect actually undermine senior water rights through expedited water markets and top-down, unilateral approval of water sharing arrangements.

“These regulations are very problematic. To distribute water this way, the state has to know who has what water. The courts should determine that, not the State Engineer,” said Fred Waltz, attorney for over a hundred acequias in the upper Rio Grande. “In most areas, metering is just not practical. These regulations should be called Active Water Resource Meddling.”

The panel of attorneys also called attention to problems with expedited markets. “Expedited markets are a violation of state law. The State Engineer is attempting to circumvent basic constitutional due process and notice requirements and the statutory requirements for water transfers in state law,” said David Benavides, attorney for New Mexico Legal Aid. The statutory water transfer process includes consideration if impairment of existing water rights, water conservation and public welfare and it provides for opportunity to protest. Benavides also discussed the significance of local decision-making regarding water sharing. “The State’s role is to enforce priority and protect senior water rights. It is up to the communities to decide among themselves how to share water in a matter that is equitable and serves the common good.”

The response by the State Engineer and his general counsel, D.L. Sanders, was not clear. D’Antonio explained that expedited markets were needed to provide water to junior users, typically cities, in times of water shortage and priority calls. “If we call priority on a city, we need to make sure they have water. The regular water transfer process takes several months.” When asked by Senator Griego whether acequia water rights could be part of expedited markets, D’Antonio responded that they could. When asked whether expedited markets violated due process, D’Antonio avoided a direct answer saying only that markets are “voluntary.”

In the following presentation by the New Mexico Acequia Association, Paula Garcia explained the impact of water markets on acequias. “Unprecedented demands for water are threatening the future viability of acequias and small-scale agriculture in New Mexico. State policy that expedites water markets is the wrong direction for New Mexico.” In response to earlier statements by the State Engineer and expedited markets, Garcia urged the committee to have more oversight over rulemaking by the State Engineer and to repeal language from a 2003 law the OSE uses as a justification for expedited markets.

Episode 23 of ¡Que Vivan las Acequias! - produced by Miguel Santistevan of the NMAA in collaboration with Cultural Energy (www.culturalenergy.org).

This show could adequately be termed “Acequia Culture 101,” and features a presentation by Dr. Jose Rivera, sociology professor at the University of New Mexico and author of the book “Acequia Culture” published by UNM Press in 1998. The show gives a general overview of the history of the acequias, how they made their way to the upper Rio Grande, along with their cultural role and challenges.

Music by Cipriano Vigil.

Download episode: 23quevivan.mp3