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Water Right Cases Could Determine Acequia Future

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. 

 

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