In 2013 NMAA hosted a rally to encourage the passage of a new Farm Bill. Photo: Serafina Lombardi
By David Benavides, New Mexico Legal Aid Attorney
When I think of the New Mexico Acequia Association and its influence on the state as a whole, I think about the long arc of New Mexico history and the fact that NMAA was formed at a point when there was a historic need for acequias to gain back some of the sense of self-determination they had before modern times.
When New Mexico became a state in 1912, acequias were one of its strongest institutions. Elephant Butte reservoir did not yet exist, nor did the Middle Rio Grande Conservancy District (MRGCD), nor most of the larger scale agricultural districts. Those areas were all primarily acequia agriculture, which was the backbone of agriculture in the state. As such, a great deal of deference was given to the authority that acequias had over their water rights, their easement rights, and their locally unique systems of water allocation. Any water law or policy that acequias would have felt they needed for their own defense they probably could have easily passed in the Legislature. No one at that time could have imagined a future in which acequias would need protection or would need to be recognized and respected as valuable to the state.
78 years later, the picture was quite different. The state’s population had almost quintupled from 330,000 in 1910 to 1.5 million in 1990, and one-third of those people lived in the Albuquerque area, which had seen its acequias largely absorbed into the MRGCD. A similar process took place in Lower Rio Grande with the Elephant Butte Irrigation District. The San Juan-Chama Project was completed. These were three examples where the state had put its resources into large, expensive water projects, and had put its faith in the State Engineer to develop them. The State Engineer in turn required that water rights be more exactly quantified, and so a dozen stream adjudication suits were filed, and all of a sudden thousands of acequia parciantes were defendants in state-initiated lawsuits, and the validity of many long-held water rights were questioned. Quantifying water rights in turn led to water rights being analyzed outside of the context of the community and the acequia that gave rise to those rights. Proposals were made to transfer acequia water rights to distant areas, without regard for the effects on the community that would lose those rights. This marked a change, where water was being treated as a commodity, rather than as an essential and integral part of rural agricultural communities. Some people began advocating – to address the issue of getting water rights where they were needed for development, industry, or municipalities – that a New Mexico-wide water market run by the state be established. The assumption in this idea was that water rights would be moved out of agriculture to whoever or wherever offered the most money.
Acequias were getting lost in this new way of thinking. They were becoming invisible outside of their local communities, their needs neglected.
This extremity of position was one that would spur NMAA to place a great emphasis on policy work as one way of addressing the loss of acequia self-determination and prominence. Through its Concilio, Policy Working Groups, and Congreso de las Acequias (a federation of regional acequia associations), the organization has engaged grassroots leadership to assist in identifying and addressing their most pressing concerns. NMAA has worked at the local, state and federal levels to create policies that address those concerns. After 30 years it can truly be said that NMAA has made acequias visible once again.
Some examples of NMAA’s work influencing decision-makers include:
- Water Right Transfers. Acequias now have decision-making power over proposed transfers of acequia water rights, thanks to a law NMAA passed in 2003.
- Water Banking. NMAA several times defeated in the Legislature bills to set up statewide water marketing or statewide water banking. Turning that conversation toward a more useful avenue, NMAA instead enacted a state law in 2003 for local water banking, whose purpose is not to market water rights but rather to protect water rights from being lost for non-use.
- Condemnation. NMAA passed a bill in 2009 prohibiting cities from trying to condemn acequia water rights.
- Easement protection. Passed in 2005, Acequia mayordomos and commissioners now have more legal remedies available to them for situations where a landowner is not respecting an acequia’s right-of-way or where a landowner is blocking or interfering with the acequia.
- Tort claims. Like other public entities, acequias and their members, officers and employees are now shielded against tort lawsuits as of 2006.
- Notice of State Engineer Water Right Transfers. In 2019, NMAA passed a law expanding the outdated system of OSE legal notices being published only in newspapers – adding on-line notice, assisting acequias in their ability to file a protest.
- Liens for non-payment of dues. Acequias now have a simpler process for placing liens on property after receiving a Magistrate court judgment for non-payment of dues as a way of inducing parciantes to come current on their dues.
- Funding for acequias. NMAA has successfully advocated many times for various types of funding for acequias the state level including funding for infrastructure improvements, adjudication expenses, and legal and technical assistance on governance issues.
- Federal funding for acequias. For years, NMAA worked with NM Association of Conservation Districts and our Congressional Delegation to make acequias as local governments eligible for EQIP funding for infrastructure. This was finally achieved in the 2018 Farm Bill.
- Easement/Maintenance rights on federal land. NMAA has campaigned to get federal agencies – particularly the Forest Service – to honor the easement rights of acequias that cross federal lands. Including the right to do maintenance and improvements without the cost and delay of getting a permit from the agency. After twenty years of NMAA working on this issue, in 2019 we achieved a Guidance Document from the USFS directing their field offices to cease requiring permits for the repair and replacement of existing acequia structures.
- Supporting local governments to protect Acequias. NMAA has collaborated with local governments to strengthen ordinances that protect acequia easements, acequia served water rights, and agricultural land.
- Court advocacy: NMAA has also weighed in on a number of court cases involving important questions of acequia rights and water rights. Most recently, NMAA filed an amicus brief in the New Mexico Court of Appeals, successfully defending the right of an acequia to hold its meetings in Spanish.
Reflecting on how this was accomplished:
In the movies, great popular movements and political change happen as if by magic – the lead character makes a speech and the world changes! In reality, this type of progress is never made simply because you are on the side of what is right. Good ideas are almost always met with resistance, and overcoming that resistance takes a tremendous amount of effort and organizing. The gains that acequias have won over these past 30 years happened because, fortunately, acequias had several key ingredients for success:
- Statewide Leadership. For acequias to come together after centuries of acting locally and autonomously took a certain rarely-found type of leadership – one that was patient and credible and that inspired confidence in the vision of acequias moving beyond their local spheres of influence and building an organized statewide presence. Slowly at first, and then accelerating under Paula Garcia’s leadership beginning in 1998, acequias joined together in a way they never had before.
- Local Leadership. Every victory turned on the fact that countless acequia leaders stepped forward at a crucial point in time. For example, when the water transfer law was passed giving acequias the right to decide on water transfers, each acequia had to amend its bylaws to include this new power. Without hundreds of acequias holding meetings they would not have the trasfer protection under the law.
- Legislative Leadership. Acequias in New Mexico have been blessed with some of the most dedicated legislators working on their behalf. Two stand out in particular: the late former House Speaker Ben Lujan, Sr., and Senator Carlos Cisneros, whose passing we now mourn. They sponsored the most important of the legislation listed above. They never gave up, but remained committed to these bills until they would finally pass. These two exceptional men exemplified what it means to be a public servant and the acequias of New Mexico are fortunate to have had them by their side.
- Collaboration and Partnerships. NMAA has worked with a variety of organizations and entities in our advocacy through the years. NMAA’s closest partner in visioning these changes has been New Mexico Legal Aid. Additionally, NMAA is grateful for its partners across the Agricultural Community, various governmental agencies, those with interests in conservation, water resources and open government. NMAA’s issues have been ones that have often led disparate groups to find common ground in our values of protecting the land, water and its people.
The policy achievements listed here are a mere sampling of NMAA’s work. While acequias have made great strides working together, continued advocacy is vital for us not to lose the ground we have gained. Economic interests are still driving many decisions concerning water, new issues are constantly emerging, and changes long in the making such as demographic shifts, a move away from an ag-based economy and climate change, to name just a few, must be reckoned with. Through it all, NMAA is committed to being a platform that offers acequias a voice, to share our visions for policy change and to advocate together.
By David Benavides, New Mexico Legal Aid Attorney