Commentary by KAY MATTHEWS
We all like to talk about the cohesiveness and democracy of acequia culture, and how vital it is to maintain the integrity of this system of irrigation that supports land-based communities in northern New Mexico. What we don’t talk about, however, is how the internecine bickering and demographic changes within this community are just as big a threat to acequia vitality as is the transfer of agricultural water to what the powers that be define as the “highest and best” uses: urban, industrial, and recreational.
Every acequia has to deal with its own internal problems, but I think my village is emblematic of the democratic, relational, and economic changes that threaten acequias across el norte. Twenty years ago, when I arrived, the village was comprised of a generation of older men born and raised here who often had to leave home to find work in the mines of Colorado, as sheepherders in Wyoming, or in the canning factories of California but who retained their ties to the village and came back when they could. These men ran our three acequias as they had been run for hundreds of years as the only form of governance in the small, unincorporated villages of northern New Mexico. Parciantes came to the meetings to elect the commissioners and mayordomos, and parciantes showed up in the spring to clean the acequias communally.
Over the years, however, a group of younger men, also born and raised in the village but who had left to get an education, returned to the village to live either part-time or full-time and commute to work. They began to challenge the authority of the older men, sometimes motivated by longstanding family feuds played out in the only arena available, and sometimes simply wanting the old to give way to the new. But whatever the reason, acequia meetings deteriorated into gladiator forums and those parciantes not vying for power quit coming. The younger men also decided to challenge the democratic tradition the acequias embodied by demanding that the number of derechos (water rights) owned by each parciante should determine the number of votes he or she had instead of the one vote, one parciante system that was being used.
This argument about whether acequias vote by derecho or by one parciante, one vote reached the New Mexico courts. Many years ago in La Lama, a community north of Taos, a wealthy landowner tried to change the voting procedure on his acequia to gain control. The rest of the community joined against him, hired a lawyer, and successfully challenged his position in court. The ultimate decision was that each acequia association has the right to determine its own voting practice, either by derecho or by parciante. This was a victory for the La Lama community, and except for one ditch, members immediately adopted the more democratic system into their acequia bylaws.
Like La Lama, one of the acequias in my village that remained under the control of the older men retained the democratic voting system. But as the years went by members of the community died and their land was either divided up among family or sold to those outside the community. Second homeowners showed up who weren’t really vested in the every day functioning of the village and rented their fields to locals, while many of the local kids, the third generation, moved away, unable to find work in the area. There are so many divided water rights among absentee landowners and family transfers that it’s hard to keep track of who is billed for what amount of money. And what this means during acequia elections is that many of the larger land owners gather proxies from their family members who are listed on deeds as land owners but who don’t live in the village, or from those whose fields they irrigate, and swing elections through their accumulated votes. One parciante one vote becomes moot.
The accumulation of land and power into the hands of the few affects the relational nature of the acequia. This year two of the acequias in my village have to do without a mayordomo; the commissioners, who now serve on all three ditches, run the rotation, as there’s no one willing—or left— who can fulfill the duties of a mayordomo. I just found out a few days ago that one of the commissioners just quit as well, so one of the acequias is left with two commissioners and no mayordomo. We now have to contract work for cleaning the ditch, which is alien to the tradition of each parciante cleaning, or hiring someone to clean, the ditch communally, which we’ve had to abandon because so few of the parciantes actually live here while others don’t show up and neglect to make sure someone will be there to do the work for them. Instead of parciantes maintaining an intimate relationship to the acequia and to each other in a day’s work with a shovel and a lot of laughter, outside crews bring chainsaws and even backhoes to excavate a nameless ditch.
When the relational and democratic bonds to the acequia are broken economic forces step in to fill the void. Many of those who now run the acequias use the words “efficiency” and “strictly legal” to describe their management goals. Ditch banks are cleared of all vegetation and more and bigger culverts carry the water more “efficiently” despite the loss of riparian habitat and groundwater recharge. Ditch fees rise every year due to increased payments for cleaning, maintenance, and improvements that are decided and implemented by the commissioners, often without the approval or oversight of the rest of the parciantes. While some of these improvements are necessary to keep the ditches running, those who can’t pay the fees in their entirety don’t get any water. We have endless arguments over whether it’s “legal” to allow parciantes to pump out of the acequia, during their rotation time, to water hard-to-get-to gardens or trees that can’t be flood irrigated (despite the fact that one of the acequias consulted a water lawyer and incorporated that right into the bylaws), and whether we can be a little flexible, rather than “efficient”, in figuring out a way to get water to gardens that require it more often than every two weeks.
In a neighboring village that has long been divided between two warring factions, two commissioners sued the third commissioner and “fired” the mayordomo who served on the previous “enemy” commission. It went so far that people were cutting locks and threatening retaliation. One of the long time water lawyers (pro bono) involved in this community’s dispute (and many other disputes on many other acequias over the years), who was trying to work out an equitable settlement without going to court, told me he doesn’t think he can continue to get involved in these kinds of fights much longer. We’ve become a people who litigate over inter- and intra-community disputes concerning water allocation, rotation, movement, representation—anything and everything. And unfortunately, we often involve the Office of the State Engineer, which increasingly puts the community control of our water rights at risk.
Years ago I tried to resurrect the idea of an Acequia Mediation Team, based on the traditional concept of the Hombres Buenos. These “good and honest” men and women from the communities, defined by José Rivera in his book Acequia Culture: Water, Land, & Community in the Southwest, would “design workable solutions not according to a formal set of codified laws they knew little about, but according to the standards and informal precepts acceptable to the majority of vecinos in the locality.” The mediation team would be comprised of well-respected people from the acequia community, knowledgeable about the legal and traditional aspects of the system and capable of helping people work through hard issues. Hopefully these Hombres Buenos, from outside a particular dispute, could bring the objectivity and clarity back to the process of putting our waters to beneficial use. As a former board member, I submitted my proposal to the New Mexico Acequia Association (NMAA), but nothing ever came of it.
The NMAA’s main focus has been policy development, and consequently the organization works largely within the political arena to influence legislation. In 2003 the state legislature promulgated a new state statute that gives acequia commissions the authority to review any proposed transfers from their ditches to assess whether they would be detrimental to the acequia or its members. If an acequia adopts this provision into its bylaws, all proposed transfers of water rights out of that acequia system would be subject to the approval of the commission. Passage of this statute was a commendable effort on the part of the NMAA, which recognizes that acequias are dependent on the cooperation of all parciantes to provide the hydrological surge, manpower, and financing necessary for the operation and maintenance of their irrigation systems as a community.
But there are powerful figures within the acequia community who believe a water right is an individual private property right that each owner has the authority to sell on the open market. While this issue has never been overtly acknowledged or dealt with within the NMAA (the 2003 legislation was challenged in court and upheld), I think, unfortunately, it has influenced the organization’s position on the disquisition of the adjudication settlements currently being promulgated in New Mexico, which contradicts the very concept of water as a community resource. The Aamodt adjudication settlement, in the Pojoaque basin, relies on many acre-feet of imported water from Top of the World Farms in northern Taos County to meet the future needs of the pueblos (Pojoaque, Tesuque, Nambe, and San Ildefonso) and to provide a water delivery system to the non-pueblo water users. The Abeyta, or Taos Pueblo adjudication, relies on San Juan Chama water rights, water transfers, and deep mitigation wells that tap into water sources thousands of feet below ground. As the water market expands to meet not only the terms of these settlements but many other transfers from agricultural to urban and industrial use, the pressure to sell water rights will inevitably affect the acequia community.
In the NMAA’s Noticias de Las Acequias January 2010 issue there was an article on the Aamodt and Abeyta settlements, whose legislation had just passed in the U.S. House of Representatives. The article gave some background on the adjudications and then stated, “Without action on these settlements, the people of the region would face ongoing litigation and uncertain water resources for years to come.” It then laid out a long list of all those organizations that support the settlements. NMAA’s position heightened some already brewing criticisms of the organization by various acequia advocates. In a letter sent to NMAA staff and widely disseminated throughout the acequia community, Placitas parciante Lynn Montgomery chided the organization for “refusing to actively and unequivocally support adjudication for all senior water rights,” in particular its failure to take a position on the Lower Rio Grande adjudication involving Scott Boyd, an issue covered in the December 2009 and January 2010 La Jicarita News issues. He also objected to the Noticias de Las Acequias article in support of Aamodt: “This settlement sets an extremely dangerous precedent to senior rights, and even kept senior rights holders out of negotiations. Their rights are being treated as an afterthought . . . . When this settlement is finally consolidated with other Rio Grande adjudications, there is a good chance the water that it is depending on will be null and void.”
The water the settlements depend upon is paper water that could be affected by any number of things, including a decision in the Lower Rio Grande adjudication that could impact all water rights in the Rio Grande basin. Opening the door to the movement of water out of its area of origin, be they acequia, stream system, or groundwater rights, validates the argument that water markets are the best way to meet our future water needs, which flies in the face of the priority system in New Mexico that has protected senior native and acequia water from privatization.
One of the acequia leaders who has been very vocal in his advocacy of water rights as private property sits on the governing board of the Pojoaque acequia and well water association, a group that is a party to the Aamodt settlement. The settlement negotiation sessions were held behind closed doors; community members who felt the initial proposed settlement was unacceptable (it called for mandatory hook-ups to the non-pueblo water delivery system), formed an alliance to lobby their cause. The alliance rejected the idea, put forth by the water association, that the initial settlement “was the best deal they could get” to prevent a priority call by the pueblos. Ultimately, the alliance was vindicated in its assertion that the water association was not representing the best interests of the non-pueblo water rights holders when the settlement was changed to call for voluntary, not mandatory, hook-ups to the water system. At several meetings between these two groups the well water association board member was adamant in his defense of water rights as private property and critical of alliance members who continue to oppose the terms of the Aamodt settlement.
Several prominent Taos Valley Acequia Association (TVAA) members, who are parties to the Abeyta settlement in the Taos area, are also outspoken in their advocacy of private property water rights. These members have also been fierce opponents of the Public Welfare component of the Taos Regional Water Plan. Public welfare is one of the criteria the Office of the State Engineer must consider when reviewing a water transfer application (the other two are whether the transfer will impair other water rights and whether it is contrary to water conservation). Public welfare is the criteria that is the hardest to define and precedent has never been set in court decisions regarding water transfers. The Interstate Stream Commission was incapable of figuring out how to define public welfare in intra-state transfers so it decided to charge the regional water plans throughout the state with developing public welfare statements as part of their job.
The Taos Regional Water Plan steering committee did just that: we promulgated this component to help determine whether any proposed water transfer within or from the Taos area is in the best interests of the citizens of Taos County by taking into account the impacts on the county’s cultural, agricultural, ecological, and economic concerns. A Public Welfare Implementation Program committee was designed that would review proposed transfers and make a recommendation to the State Engineer. Not only were these TVAA folks and their supporters able to scuttle this section of the regional water plan, they also opposed the Taos County Ordinance that subsequently set up a Public Welfare Advisory and Informational Board, which has been meeting for over a year now to review all proposed transfers and make recommendations to the Taos County Commission as to whether the county should protest the transfer.
This disconnect within the larger acequia community threatens both senior water rights holders and the agricultural lands that support urban and rural areas dependent upon aquifer recharge. If the folks who use and nurture these ancient ditches at the village level are complicit in the disempowerment of their communities, then acequias become just canals, with no heart and soul to endow them with meaning. Maybe it’s time for acequia parciantes to actually practice a kinder and gentler governance that values the individual parciante and the larger community of which he or she is a part.