By KAY MATTHEWS
Free market capitalism is the engine that runs the world’s economy. As capitalism gained traction after the industrial revolution, nation states that functioned less efficiently (less institutionalized) or in political opposition were exploited for their resources to support first world living standards or invaded to change their politics. Pejoratively labeled “third world” they were consigned to the dustbin of history.
Within New Mexico, itself consigned to that same dustbin when the forces of Manifest Destiny marched westward, there remain regions that have retained remnants of the state’s indigenous third world culture as the rest of the state marches to the beat of capital accumulation. But I don’t use third world pejoratively here. I use it to illustrate how the concept of the commons, as opposed to the state or market forces, has been manifest in the management of resources in these New Mexico regions for centuries.
New Mexico communities have maintained—not preserved—their commons in ways that remain part of our everyday lives: parciantes irrigating crops and fields with acequias; extant land grants managing their forest resources communally; grazing associations forming to collectively raise cattle on private and public lands; and farmers saving seed to reproduce crops regionally grown for hundreds of years.
La Jicarita readers are aware that state or market forces continually threaten all of these practices. We’ve written extensively on the history and impact of public land management agencies such as the United States Forest Service that was the beneficiary of a generation of land grant dispossession and that denied communities access to needed resources—timber, pasture, and acequia infrastructure. We’ve written about how locally managed water is being transferred to underwrite urban, recreational, and industrial use despite the priority system that is supposed to protect traditional communities. We’ve written about the oil and gas and mining industries that continue to pollute our common aquifers and abrogate local sovereignty.
We’ve also written about how these forces continue to be challenged. The Vallecitos Federal Sustained Unit Association fought back against both the USFS and the timber companies to reduce unsustainable timber cuts in the Carson National Forest. We’ve written about the 2003 state statute that allows acequias to incorporate into their bylaws the power to deny water transfers from their ditches if they would prove harmful to the integrity of the system. And we’ve written about how communities have galvanized to enact regulations to protect their land and water resources from oil and gas development.
The agenda for a meeting that took place in the Taos County Commission chamber on Monday, October 28 called for a conversation about the Taos County Public Welfare Statement and Public Welfare Advisory Committee’s role in reviewing water transfer applications. I thought about getting up and talking theory, but I think most folks at the meeting understood that the conversation was about the contested terrain between the commons and free market capitalism. Those who believe in the integrity of the commons work to keep water in its area of origin and not transferred to underwrite future development in different watersheds or out of the region. Those who believe that market forces should dictate the movement of water, which has been defined by the state as private property, don’t want any regulatory or public oversight to get in the way of development. Allowing natural resources to help determine sustainable growth and development patterns is not the way things work in a market economy.
As I’ve explained in previous articles, the Taos County Public Welfare Advisory Committee (now called the Water Advisory Committee) was set up to provide oversight of water transfers both within and from Taos County and is charged with determining if a proposed transfer is in the best interest of the citizens of Taos County based on criteria that define the public welfare: cultural protection, agrarian character, ecological health of watersheds, long-term economic development potential, recreational tourism, public information, water supply management, conservation, conjunctive management, and minimizing water contamination. The Committee then makes a recommendation to the Taos County Board of Commissioners as to whether the board should or should not protest the proposed transfer to the Office of the State Engineer.
The Advisory Committee is the only one of its kind in the state. It’s genesis lay in the Taos Regional Water Plan whose Public Welfare Committee first proposed the idea of an educational and oversight committee. Acequia advocates have fought for years to get legislation that would require better public notice when transfers are proposed to the OSE. All that is required now is a notice in the legal section of a newspaper published in the region of the transfer for three consecutive weeks. A glaring example of the lack of public awareness allowed Santa Fe County to buy Top of the World (TOW) water rights in northern Taos County and apply to transfer them to Santa Fe County back in 1998 as part of the Aamodt Settlement. Fortunately for Taos County, that transfer was protested by several out of county acequias and parciantes; Taos County will have the opportunity to protest an updated application when it is filed in the near future.
The reason the Committee was convened to talk to the commissioners on October 28 was because it had recommended that the Commission protest two transfers, both part of the Abeyta Settlement (or Taos Pueblo Water Rights Adjudication), which settles water rights in the Taos Valley affecting Taos Pueblo, acequias, domestic water users, the town, and a water delivery district. Both transfers involve large amounts of water that would be moved from the Questa watershed to the Taos Valley to meet the terms of the settlement. The 2012 Commission accepted the Committee’s recommendation to protest three proposed transfers by the El Prado Water and Sanitation District, but the newly constituted 2013 Commission failed to hear the Committee’s recommendation to protest a water transfer application to transfer 183 acre feet per year (afy) from a Questa acequia to acequias in Arroyo Seco.
The parties to the Abeyta Settlement fought against the establishment of the Public Welfare Advisory Committee because they wanted unfettered access to water wherever they could find it. The provisions to import water and to also pump water from deep aquifers to meet present and future water supply demands are both controversial components that could raise protests. And now the County Commission is questioning whether protests involving the Abeyta Settlement are “too time consuming and costly,” and even if the county should be involved in protests of transfers from watershed to watershed if that would inhibit the movement of water to the “highest and best” use.
And so we see the breakdown between the concept of the commons versus the state and market. But several folks at the meeting raised an important argument that put the issue in more practical terms. If the county takes the position on the Abeyta that it is sacrosanct, it doesn’t put the county in a very good position to protest the impending Aamodt Settlement transfer of 1,170 afy of water from Top of the World in northern Taos County. As Bill Whaley, editor and publisher of the online Taos Friction put it so well in his latest column:
“If the County wants to protest against water rights transfers, like Top of the World water rights being sold to Santa Fe to support the Aamodt Settlement downstream, then the County must also vet and publish its record of decision re: intra-County transfers re: El Prado and the Rio Lucero [Arroyo Seco] purchases of water rights from northern Taos County or it will be challenged in court about making exceptions that smack of ‘special’ or ‘political’ decisions that undermine its own criteria. In other words Commissioners must balance special and general interests but make sure transfer decisions are consistent and well-argued so they can stand up to potential legal challenges from downstream municipalities and governmental entities.”
The OSE, which reviews all water transfer applications, has to consider the criterion of public welfare in making its decision (the other two criteria are if the transfer is contrary to the conservation of water or impairs someone else’s water rights). There has never been a statutory decision about what actually constitutes the public welfare, although through the State Water Planning process all of the Regional Water Plans were charged with promulgating Public Welfare Statements that reflect the concerns and values of their regions. These regional water plan statements are intended to provide the OSE with better information regarding the impact of proposed transfers on the public welfare of each region.
As Ron Gardiner, one of the Advisory Committee members, pointed out, Taos was the last region to draft its Public Welfare Statement and was motivated to provide as much protection as possible for its water resources that other regions are or will be attempting to transfer to meet their own needs. The OSE has a long history of rubber-stamping water transfers that if scrutinized under a Public Welfare Statement the agency would be hard pressed to defend.
It’s up to the County Commissioners how they will define the future role of the Advisory Committee, but we’re not getting any help from county staff. It has proposed changes to the Advisory Committee that “broaden” its responsibilities to include a more general role in water planning and narrow its role in assessing water transfers under the Public Welfare Ordinance. It wants to make the Committee a more “in-house” function of the Planning Department and diminish its role as an informational conduit to the public (the Public Welfare Ordinance states that one of the purposes of the Committee is “To inform residents of the County about proposed appropriations and changes in point of diversion, place of use or purpose of use of water from and within Taos County”). Proposed changes to the Committee’s bylaws, which were formulated by staff and have not yet been reviewed by the Committee, reflect this position.
So my time on the Committee is over; I resigned a couple of weeks ago when I saw what was coming down the pipe. But it was an interesting three-year ride. While the outspokenness of many of the committee members who believe in the commons may have resulted in this backlash from the county, the fact that we had this discussion on the 28th, as obtuse as it may be to some, and as obvious as it is to others, is actually encouraging: we know where we each stand in the divide. It puts the powers that be on notice that the decisions they make will have real and lasting consequences and that those affected by these decisions will be there, up close and personal.