New Mexico Acequia Association

Water and Natural Resources Legislative Interim Committee

Transcript of Oral Remarks by Paula Garcia, New Mexico Acequia Association

September 19, 2008

 

Mr. Chair, members of the committee.  Good morning and thank you for the opportunity to share with you an acequia perspective on Active Water Resource Management, a.k.a AWRM.

 

Acequias have managed water for hundreds of years in New Mexico through customs unique to each acequia.  The principles and cultural practices we refer to as the “repartimiento” guide the allocation of water within acequias and between acequias.  Each Mayordomo, who is democratically elected, is responsible for distributing water within his or her respective acequia.  By custom, Mayordomos on the same stream system agree on a system to share water between acequias. 

 

This has been the system for hundreds of years and it hasn’t cost the state any FTEs.  It isn’t perfect but it has been resilient.  And if we destroyed it today, we would not be able to recreate it.  If anything, we should learn from the acequia system, build upon it, and strengthen it.

 

This background is important to understanding why acequias have concerns with Active Water Resource Management.  Please note that we are not litigating against AWRM.  We understand these regulations are well intentioned in attempting to provide a framework for priority administration.  We support this intention on the part of the State Engineer. However, given the legal challenges and the practical problems with implementation on the ground, we need to ask whether AWRM has missed the mark.  Consider the following:

 

1. Water Master Authority Over Scheduling:
   1. In making water allocations, water masters exercise authority over whether to open or close headgates.  This is a function traditionally performed by the Mayordomo.  Acequias are concerned that the schedule imposed by the water master is not based on the needs of the irrigators or knowledge of the stream system.  Nor does the water master schedule account for the practical needs of farmers, particularly those who grow vegetables and need in smaller amounts but more frequently.  Local knowledge is important in defining a schedule that works. Water masters typically lack traditional, Mayordomo knowledge.
2. Water Master Authority Over Diversion Amounts
   1. The formula used to determine diversion amounts may be shortchanging acequias on their historic diversion right.  Acequias rely on having enough pressure head to move water through the ditch efficiently.  The methodology used by the OSE to calculate diversion amounts, or Project Delivery Requirement, is flawed according to many acequias. 
3. Protocol and Process
   1. The state statute concerning water masters seems to suggest that water masters are appointed where they have been requested by the water users in that basin although the State Engineer can do so for the public interest.  AWRM regulations provide a sequence of steps in the appointment of a water master including creating basin specific rules and regulations before the water master hits the ground.  Generally, this does not seem to be the case, either in basins that are defined as AWRM basins by the State Engineer and those that are not.
   2. Once a water master is appointed, according to acequias in those basins, there does not seem to be a protocol in place for how to deal with Mayordomos or landowners.  It appears that in some cases the water master exercises unlimited access to private property.  Generally, it seems that water masters have unilateral decision-making power over headgates without any consultation with Mayordomos. 

 

Mr. Chair, members of the committee, even though these seem like ordinary details, they are great consequence to the acequias and their continued survival in New Mexico.  Done improperly and without deference to local acequia officials, the water master can be a destabilizing and divisive presence in a community.

 

As an organization that advocates for acequias, we get numerous complaints from around the state but more recently including the Mimbres Valley and Rio de las Gallinas.  What might be of great interest to you as legislators, who are funding these positions, is that a water master is being appointed in Mora where the community has firmly stated that they do not want, do not need, and will not accept a water master.

 

Additionally, there is a major issue regarding AWRM that is not part of any of the ongoing litigation.  During the rulemaking process for AWRM, we raised concerns that the “replacement plans” in AWRM violate state law.  These replacement plans call for the short term leasing of senior water rights to junior uses during times of curtailment of junior water rights in a priority call.  These are changes in points of diversion, place of use or purpose of use.  In other words, these are “water transfers.”  The AWRM regulations circumvent protections for public notice and due process and are therefore unlawful.  Calling them by another name does not entitle the State Engineer to operate in a manner that is contrary to statute.

 

Finally, as state policymakers, you may want to consider what are priorities for the State of New Mexico.  For example, what is the rush to appoint water masters when there are no regulations in place for those basins, except that the money was appropriated and has to be spent.  Meanwhile, our state hasn’t yet completed adjudications that have been pending for decades.  And, we might also point out the double standard with regard to priority administration.  OSE pursued priority administration with great rigor when senior acequias call priority on less senior acequias.  But when it comes to curtailing a city, well, we don’t see the same rigor.  Why appoint a water master in Mora when staffing might be needed in the Middle Rio Grande where senior users there have expressed concern over how the new city diversion will be administered in relation to senior water rights.  These are questions of statewide significance. 

 

The general pattern we are observing is that, under the rubric of AWRM, the Executive Branch is exceeding the authority granted by the State Legislature.  While we support the efforts of the state to enact a framework to administer prior appropriation, we also maintain that the procedures used should be in accordance with state law.

 

Thank you for your consideration.