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.