Water is Complicated

By SUZY T. KANE

To illustrate the complication of water, take the case of the El Valle de los Ranchos Water & Sanitation District (El Valle) vs. Jose Venito Martinez Acequia (JVM Acequia).

John Miera, Tom Trojnar, and John Hall are commissioners of the JVM Acequia, which gets its water from the Rio Fernando. All three use their allotment of water to irrigate mixed grasses to feed their horses and burros, and in two cases, sell any extra.

Commissioner John Hall, foreground, working on his acequia with his fellow parciantes
Commissioner John Hall, foreground, working on his acequia with his fellow parciantes. Photo by Rebecca Hall

What happened is this: In 2007 without notifying the commissioners, as required in the JVM Acequia Bylaws, James A. Mitchell, a property owner with water rights in the acequia, severed his water rights from his property and sold them for $42,757.16 to El Valle. Without the formal consent of the commissioners, according to the JVM Acequia Bylaws, Appendix A, Article 9, General-2, the transfer was “unlawful and void.”

Under a new law passed by the state legislature in 2003, an acequia can now regulate proposed water right transfers relating to the aequia. As long as the new law is adopted into the acequia’s bylaws, which the Jose Venito Martinez Acequia has done, the acequia has the authority to deny a transfer of water rights if the commission feels it “will be detrimental to the acequia or its members.”

The Commissioners did not learn of Mitchell’s sale until two years later when El Valle filed an application with the JVM Acequia seeking approval of the transfer of 7.4 acres of surface water rights. After holding a public hearing in November 2009, which was continued in December, JVM Acequia denied the water transfer, including in its reasons the loss of 10 percent of its water and setting precedent for weakening the acequia system. Without the acequia’s approval, the Office of the State Engineer would not consider approving the transfer. In 2010, the acequia convinced El Valle to try to get its money back from Mitchell, but he had already spent it.

El Valle appealed in court, exhibiting a State Engineer Hydrographic Survey map that showed the JVM Acequia as sub-irrigated, interpreting that information to mean that the transfer would not affect the surface or groundwater of the JVM Acequia. On October 19, 2012, the commissioners received a copy of the Final Order signed by Judge John M. Paternoster, reversing their denial of the transfer. The acequia could appeal, but it lacks funds to hire a hydrologist or other water expert to testify on its behalf

According to Bob Romero, president of El Valle, Mitchell came to El Valle to offer his water rights for sale. “We are always looking for water,” Romero said. He pointed out the law that says if an owner doesn’t use his water rights for over four years, he not only forfeits them, but the rights can disappear. Instead of seeing that happen to the Mitchell water rights, Romero said, El Valle would rather it use them for its domestic system.

Romero believes in the acequia system. Referring to his family, he says, “We’ve always had a garden.” But he adds, “People’s needs are changing.” Formed in 1978, El Valle has in the past ten years laid 22 miles of sewer pipe, including hooking up UNM-Taos to the system so that its Klauer campus could open in 2008. Now El Valle plans to lay pipes across Highway 68 to West Llano Quemado. Asked if new development is going in there, Romero answered, “Yes, there are some people who own big tracts of land who want to develop their property, but the primary motivation is to serve existing homes.”

Where does El Valle get the money to buy water rights? As a sub-governmental entity of the State of New Mexico, El Valle is on a par with a municipality, which can tax, borrow money, and apply for grants from such sources as the New Mexico Water Trust Board, which, according to Romero, recently awarded El Valle $100,000 to proceed with designs and plans for the West Llano Quemado extension.

Asked if he wished there was a law forbidding the sale of water rights, JVM Acequia Commissioner Trojnar replied, “No, because I would not feel right telling someone what he can or cannot do with his property.” Commissioner Hall sees a danger in separating the water from the land.

Palemón Martinez has been president of the Taos Valley Acequia Association (TVAA) since it was founded in 1987 and has been working on water rights ever since. Does he see a conflict of interest for TVAA members who support domestic water (such as El Valle)? “No,” he said, “we need water for both irrigation and domestic use.”

A seed-saving activist, teacher, and owner of Sol Feliz Farm, Miguel Santistevan is  commissioner of another acequia off Rio Fernando and a board member of TVAA.  When asked what acequia supporters could do to prevent members from selling their water rights, Santistevan replied candidly, “I don’t know.”

Santistevan’s answer puts him in company with fellow farmer/teacher/poet, Kentuckian Wendell Berry, who says: “It may be that when we no longer know which way to go that we have come to our real journey. The mind that is not baffled is not employed. The impeded stream is the one that sings.”

Writer Suzy T. Kane lives in Taos.

 

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3 comments

  1. An acequia can be proactive and deny water transfers. The Acequia del Monte in Talpa did that this year on May 27, and unanimously denied a transfer of 4.57 acre feet to El Valle. In the hearing on May 3, some land owners within the acequia, but without water rights, offered to buy the water rights, which is one way to solve the issue for those wanting to sell. Water banking is another way to preserve rights that are not being used. Here is the full audio of the hearing http://www.culturalenergy.org/mp3/acequia-transfer3may12.mp3

  2. The acequia bylaws allow for ‘water banking’, which is what can and should occur when individual surface water rights owners do not/can not use their water for whatever reason. Water banking often is not enforced within acequia associations however, but should be… in order to preserve their increasingly precious resources. Acequia bylaws allow for fines to be imposed for non-compliance. The applicable rule here is; if you don’t use it you can lose it. The State can actually confiscate water that is not being actively used by the acequia. Aerial monitoring of acequia activity is occuring statewide and will become more common as water becomes more scarce. I speak from experience as an involved parciante on a NNM acequia for the last decade. It appears the judge in this case ruled in favor of the severing and subsequent sale of 7.4 acre-feet of surface water rights in error. I hope the decision is eventually reversed.

  3. “It’s not going to be farmers versus environmentalists or liberals versus conservatives. It’s going to be the people who have water versus the people who don’t.” Daniel McCool, a University of Utah political scientist and author of “River Republic: The Fall and Rise of America’s Rivers,” discussing drought and politics in the American West in “New Mexico Farmers Push to Be Made a Priority in Drought” (New York Times 3/27/13) http://www.nytimes.com/2013/03/27/us/new-mexico-farmers-push-to-be-made-a-priority-in-drought.html?pagewanted=all&_r=0 .

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