By Enrique Romero, NMAA Staff Attorney
What should I expect as a Nambe-Pojoaque-Tesuque (NPT) mayordomo and farmer now that the Aamodt Settlement is in place and the NPT Water Master Rules are just about final?
As a farmer and mayordomo, you can expect some changes next irrigation season and in the years to come. Although the changes are significant, they are not insurmountable. Acequias have persisted and thrived for hundreds of years in New Mexico and endured changes in law and water management. NPT acequias will continue to thrive, and during this new era the small- to medium-scale farm may see a renaissance. Water use will be scrutinized, but with the right tools – including access to acequia and farm infrastructure improvements, farm-to-market initiatives, and creative match making between would-be farmers and landowners – acequias and parciantes in the NPT basin may see a net gain from the new layer of administration. Pardon the early digression. Now, let's discuss the law and how to protect what may be the community's most precious natural resource.
Probably the most relevant concept to understand as a parciante and mayordomo is "Section 4 Protection". Section 4 refers to that section of the Aamodt Settlement Agreement that provides exceptions to priority enforcement of the Pueblos first priority rights. In the event that the Pueblos request priority enforcement of their "Future Basin Use Rights", parciantes are protected against that particular type of priority enforcement. However, the protection is lost if a water right is not "beneficially used for more than five consecutive years after [March 23, 2016]". The current proposed water master rules require that the water master provide notice after four consecutive years of non-use to the water right owner indicating that Section 4 protection may be lost if water is not placed to beneficial use within one year. The Settlement provides two defenses against claims of non-use: non-use due to circumstances beyond the control of the water right owner or that water could not be placed to beneficial use by the owner's diligent efforts.
As a mayordomo – and a parciante – you should also know about the new yearly reporting of acres "to be irrigated", or the TBI report. By March 1 of each year, the mayordomo must notify the water master of all the acreage that will be irrigated that year. Start early in the calendar year, or at the end of the prior year's irrigation season, putting together the information needed to fill out the TBI report. As a mayordomo, you can expect more requests for water, perhaps from members that have not irrigated in a while. Those requests need to be memorialized in the TBI reports since the total number of irrigated acres will establish the yearly maximum diversion rate for the acequia. With the new TBI reporting requirement, mayordomos will know – if you didn't already – who is not irrigating for extended periods of time. Using this information, the acequia could inform those members about the loss of Section 4 protection after five years of non-use and send those members to local resources, including NMAA, for information on infrastructure or cover crops to revitalize soil. The key will be getting inactive parciantes interested in irrigating prior to receiving the four year non-use notice, and in time to install or replace headgates and irrigation systems, or to contract with local equipment operators to get land ready to receive water.
There are still some unknowns and there are likely to be disagreements among the various parties concerning implementation of the Settlement. Despite potential ambiguities and the bumps along the way that may arise from them, beneficial use of water is still the law of the land and affords the maximum protection of your water rights. Parciantes, let you mayordomos know before March 1 if you plan on irrigating, and once you've been assigned a time for irrigation, make sure you, or someone you trust with a shovel, is ready to open your headgate.