7

Northern New Mexico: Differing Notions of Water, Property, and Community

Three distinct cultures—Indian, Hispanic, and Anglo—compete for the scarce water resources of the spectacular but often harsh landscape of northern New Mexico. Each culture has a distinct water allocation tradition. In the nineteenth century, Anglo property concepts were superimposed over the more communal traditions of the pueblos and Hispanic irrigation communities. Today New Mexico has a sophisticated water allocation system that basically treats water as a commodity to maximize the efficiency of use of the resource. But the clash of cultures makes northern New Mexico special; there are allocation tensions that do not exist in other states. Although the Anglo allocation system has dominated for more than a century, communal traditions have survived in the face of this superior economic and political power and now show signs of resurgence. Hispanic villages and Indian Pueblos of great antiquity have survived after New Mexico passed from Spain to Mexico to the United States and are now aggressively trying to preserve their pre-Anglo culture.

The culture's underlying belief in community values, the respect for land and nature, and the unity of life, spirit, art, and work have a special appeal. Ironically, modern efforts by Hispanics and Indians to chart their destiny built on the efforts of earlier Anglo romantics. Post-World War I progressives such as D. H. Lawrence, Mabel Dodge Luhan, Mary Austin, Edgar Lee Hewett, and John Collier found the communal rural life a redemptive alternative to urban life (Forrest, 1989), and another wave of interest among artists, spiritualists, and others seeking its lifestyle is occurring today.



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Water Transfers in the West: Efficiency, Equity, and the Environment 7 Northern New Mexico: Differing Notions of Water, Property, and Community Three distinct cultures—Indian, Hispanic, and Anglo—compete for the scarce water resources of the spectacular but often harsh landscape of northern New Mexico. Each culture has a distinct water allocation tradition. In the nineteenth century, Anglo property concepts were superimposed over the more communal traditions of the pueblos and Hispanic irrigation communities. Today New Mexico has a sophisticated water allocation system that basically treats water as a commodity to maximize the efficiency of use of the resource. But the clash of cultures makes northern New Mexico special; there are allocation tensions that do not exist in other states. Although the Anglo allocation system has dominated for more than a century, communal traditions have survived in the face of this superior economic and political power and now show signs of resurgence. Hispanic villages and Indian Pueblos of great antiquity have survived after New Mexico passed from Spain to Mexico to the United States and are now aggressively trying to preserve their pre-Anglo culture. The culture's underlying belief in community values, the respect for land and nature, and the unity of life, spirit, art, and work have a special appeal. Ironically, modern efforts by Hispanics and Indians to chart their destiny built on the efforts of earlier Anglo romantics. Post-World War I progressives such as D. H. Lawrence, Mabel Dodge Luhan, Mary Austin, Edgar Lee Hewett, and John Collier found the communal rural life a redemptive alternative to urban life (Forrest, 1989), and another wave of interest among artists, spiritualists, and others seeking its lifestyle is occurring today.

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Water Transfers in the West: Efficiency, Equity, and the Environment Water transfers are important in northern New Mexico because they often move water from Indian and Hispanic users to urban and industrial users, but they are only one part of the complex politics of water in the state. All water management initiatives, from permit applications to adjudications, are more suspect than they are in other states because they threaten the complex and fragile web of communal uses or threaten to deprive Indians or Hispanics of control over their future. This case illustrates the subtle, intangible values at stake when water is reallocated in a culturally diverse setting to which the parties bring long histories of past injustices and the difficulties of designing responsive institutions. Irrigation was first practiced in the upper Rio Grande Valley in A.D. 1000 by the Anasazi, and later by the Pueblo Indians, thought to be their descendants. Spanish settlements on the northern frontier of their empire soon followed, and these also used simple forms of irrigated agriculture that continued when New Mexico passed to the United States in 1848. Each cultural group has modified the natural setting and brought a different perspective to bear on water use. Today, three sometimes intensely conflicting cultural concepts about water coexist in northern New Mexico. To many Pueblo Indians, water is a spiritual force to be respected. The Hispanics have a long tradition of water as a community resource to be shared equitably by all users. Anglo settlement brought the new idea that resources are commodities to be bought and sold. THE SETTING The Rio Grande can be divided into three segments: the upper Rio Grande, the Rio Chama, and the middle Rio Grande. Water transfer issues in northern New Mexico focus on the upper Rio Grande Valley (Figure 7.1). A detailed description of the rich physical, cultural, institutional, and economic interactions in the valley is found in The Upper Rio Grande: A Guide to Decision Making (Shupe and Folk-Williams, 1988). Physical Setting UPPER RIO GRANDE The Rio Grande River enters New Mexico from Colorado through a steep canyon that makes irrigation canals and other diversions impractical. The river then flows undiminished for about the first 70 mi (112 km) in northern New Mexico, gaining from tributaries and ground

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Water Transfers in the West: Efficiency, Equity, and the Environment FIGURE 7.1 Main waterways and related features, northern New Mexico. water. The Rio Grande is used intensively in this reach by rafters, sightseers, and others who find free-flowing water of significant value. A 48-mi (77-km) segment of this portion was designated a Wild and Scenic River in 1968. Below the canyon, north of Espanola, diversion dams and irrigation begin influencing the mainstream of the river. The tributaries of the Rio Grande in northern New Mexico also

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Water Transfers in the West: Efficiency, Equity, and the Environment are used for irrigation. Some of the small farms irrigated by Pueblo Indians and Hispanic acequia associations have histories stretching back several centuries. More recent developments, such as municipalities, ranches, and mines, also have tapped the tributaries of the Rio Grande. Water quality problems and concerns over limited supplies are a result of these increased uses. RIO CHAMA The Rio Chama joins the Rio Grande near Espanola, bringing water from the natural runoff of the Rio Chama watershed and water imported from the San Juan River, which is part of the Colorado River basin. This transbasin transfer passes through a series of diversions and tunnels built by the Bureau of Reclamation as part of the San Juan-Chama Project, transporting water through the continental divide to Heron Reservoir. Water from Heron Reservoir enters the Rio Chama, which flows into El Vado Reservoir, built by the Middle Rio Grande Conservancy District to store spring runoff and supplement the supply of district irrigators. Releases from El Vado enter a reach of the Rio Chama designated by the New Mexico Legislature as a Scenic and Pastoral River. This empties into Abiquiu Reservoir, in the area immortalized in artist Georgia O'Keeffe's paintings, and then flows 35 mi (56 km) to join the Rio Grande at Espanola. MIDDLE RIO GRANDE Below Espanola, the Rio Grande flows more than 200 mi (320 km) before reaching Elephant Butte Reservoir. The river is highly controlled in this middle reach. The river is first gaged at Otowi Bridge near Espanola, after which it enters the Cochiti Reservoir. The Jemez Reservoir below Cochiti Dam is used solely for sediment control and recreation. Intensive irrigation occurs downstream of Cochiti Dam, the primary users being irrigators in the Middle Rio Grande Conservancy District. Water in this region is also allotted to several Pueblo Indian tribes, as well as to municipal and instream flow uses. The Rio Grande in the middle reach is so modified by drainage projects, channelization, levees, and other flood control measures that the face and the course of the river have been altered dramatically. Despite these changes, riparian habitat remains along extensive portions of the middle Rio Grande, including one of the world's largest cottonwood groves. The Bosque del Apache and other wildlife refuges provide critical habitat for birds and wildlife.

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Water Transfers in the West: Efficiency, Equity, and the Environment Institutional and Legal Setting COLONIAL SPANISH LAW Hispanic communal irrigation practices originated from Spanish colonization practices and laws. Disputes continue about the exact nature of this Spanish heritage because New Mexico towns claim that Pueblo rights are superior to subsequent Anglo appropriations. But these arguments aside, the basic thrust of Spanish water policy, as set forth in the late eighteenth century Plan de Pitic, was that available water supplies were to be shared among colonists and Indians. In practice, Indian entitlements were limited, but they have always been a legitimate part of New Mexico's water system (Meyer, 1984). Under Spanish law the right to use water for domestic uses followed from the grant of crown lands. Irrigation was a different matter: the crown reserved the right to grant or withhold irrigation rights with individual land grants because large-scale consumptive water use was a matter of community interest. In New Mexico, water rights could be obtained through an original land grant, through a subsequent administrative grant, or by a later judicial determination. This process, known as composition, could “cleanse, authenticate, and even alter original grants” and could resolve disputes through the application of equitable principles (Meyer, 1984). Voluntary use agreements also were recognized. Spanish jurisprudence recognized a number of relevant principles that can be found to varying degrees in modern water law. Such factors include title based on a land grant, prior use, need, the protection of third parties, the relationship between the proposed use and the community interest, and legal right and whether the use was by a public community or private individuals. Prior use was important but not controlling. Third parties, which often meant Indians, were protected under Spanish jurisprudence, and third party interests included the crown or state interest (Meyer, 1984). THE RIO GRANDE COMPACTS OF 1938 The Rio Grande is divided by the Rio Grande Compact of 1938 into two areas below and above Elephant Butte. Transfers can take place relatively freely within each area, but transfers between the two areas are difficult because they would upset the compact balance. The compact allocates the river among three states and between Mexico and the United States. Colorado and New Mexico have rights reflecting their historic uses above Elephant Butte Reser-

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Water Transfers in the West: Efficiency, Equity, and the Environment voir under specific streamflow conditions. Water in excess of these uses must flow to Texas and Mexico. If any state wants to increase its diversions beyond the compact level, it must augment the supply in some way. New Mexico's compact obligations are measured at the Otowi Bridge gaging station, a few miles south of Espanola. When those flows are low, New Mexico must allow 57 percent of the flow at the Otowi gage to pass to Elephant Butte Reservoir. The percentage of Otowi flows that must reach Elephant Butte rises gradually, until they equal 1,400,000 acre-feet (1,726,900 megaliters (ML)). At this point, New Mexico must deliver 71 percent, and the amount of water that may be consumed between Otowi and Elephant Butte reaches its maximum, 405,000 acre-feet (499,570 ML). Above this level the whole increase in Otowi flows must be delivered to Elephant Butte. Thus there is a considerable incentive for New Mexico to consume as much water as possible above Otowi. THE MIDDLE RIO GRANDE CONSERVANCY DISTRICT In the central area of the basin is one of New Mexico's oldest conservancy districts, the Middle Rio Grande Conservancy District. Created in 1925, the Middle Rio Grande Conservancy District 's distribution and drainage system consists of 202 mi (323 km) of canals (6 mi (10 km) of which are concrete lined), 579 mi (926 km) of laterals (4 mi (6 km) of which are concrete lined), and 399 mi (638 km) of open concrete and pipe drains (Folk-Williams and Hilgendorf, 1982). The district includes more than 123,000 irrigable acres, of which more than 87,000 acres were being irrigated in 1980 (Clark, 1987; MacDonnell, 1990; Shupe and Folk-Williams, 1988). The Middle Rio Grande Conservancy District has zealously guarded water rights appurtenant to land within its service area and has prevented the transfer of irrigation rights initiated since the district's formation. The inability to transfer post-1925 rights out of this district to other uses creates greater pressures to transfer irrigation rights out of other districts. Economic Setting AGRICULTURE AND EMPLOYMENT Northern New Mexico is an economically poor but culturally rich area. People are attracted to the area from all over the country to enjoy the beautiful environment and the living presence of ancient Indian and Hispanic cultures. Agriculture—measured strictly in dol-

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Water Transfers in the West: Efficiency, Equity, and the Environment lars—is marginal. In Taos and Rio Arriba counties, the growing season is short because of the high altitudes; yields and stocking rates are correspondingly low. In 1986, per capita incomes in this area were low—$7,827 in Rio Arriba and $8,337 in Taos. Unemployment rates were high in 1986—20 and 27 percent, respectively—and in 1979 some 28 percent of the people in the two counties were living below the poverty level (Bureau of Business and Economic Research, 1989). The prime value of agriculture in this region is cultural. It is the basis of a traditional way of life for ethnic communities that are proud of their histories and have a high level of interest in maintaining their historic way of life despite pressures for change. Northern farms characteristically have low cash sales; annual marketings were below $2,500 on 50 percent of all farms in Rio Arriba and Taos counties in 1987 and below $10,000 on 83 percent. Of the farms in the two counties, 19 percent are less than 10 acres; 67 percent are less than 180 acres. The number of farms grew between 1982 and 1987. These figures indicate a stable, if marginal, agricultural sector that seems to be experiencing moderate improvement in financial viability. Of the farm operators in the region, 62 percent report that their principal occupation is other than farming, but only 34 percent worked more than 200 days off-farm during 1987. These figures indicate a high level of rural underemployment (Nunn, 1989). Below the Otowi Bridge compact accounting point lie Santa Fe and Sandoval counties. Much of the irrigated area of these counties is north or west of the Middle Rio Grande Conservancy District boundaries. Crop yields are better than in the north because growing seasons are slightly longer and the terrain is more level, but the dollar value of agriculture is low here, too. The upper valley is less rural than the counties to the north. Santa Fe is the state's capital and a world-renowned tourist center and haven for urban refugees, where out-of-state dollars contribute to a relative prosperity. Per capita income in 1986 was $14,047 in Santa Fe and $11,082 in Sandoval; 1986 unemployment rates were 6.3 percent and 8.7 percent, respectively (Bureau of Business and Economic Research, 1989). Farms in these counties have even lower marketings than their northern neighbors: some 56 percent of the farms in the area had sales below $2,500 in 1987, and 81 percent had sales below $10,000. Farms in the area also tend to be smaller: in 1987, 27 percent were less than 9 acres and 68 percent less than 180 acres (Nunn, 1989). Because the Rio Grande is a continuous hydrologic unit, settlement generally hugs the river. A water market has developed in response to urban and recreational demands. Many of New Mexico's growing towns and cities are located north of Elephant Butte Reser-

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Water Transfers in the West: Efficiency, Equity, and the Environment voir—the Albuquerque metropolitan area, Santa Fe, Taos, Espanola, and Socorro in particular. In addition to municipal uses, there are growing recreational uses in this region, especially for ski resorts and recreational subdivisions, but most of the water transaction activity in northern New Mexico is below Otowi Bridge. Santa Fe is the northernmost city drawing water from the Rio Grande basin below Otowi. Albuquerque made acquisition of water rights for future growth a priority in 1979, although actual purchases for private water rights did not begin until 1982. Other buyers in the water rights market below Otowi include utility companies, businesses, and developers, who must bring rights with them as a condition of subdivision approval (Nunn, 1989). Santa Fe's water is supplied by the Sangre de Cristo Water Company, which has a mixture of surface rights in the Santa Fe River, ground water rights from wells within the city, and contracts for San Juan-Chama Project water. These latter supplies are obtained through wells in the Buckman well fields, which draw from the aquifers associated with the Rio Grande, so that this pumping can be offset by San Juan-Chama Project rights. However, the pumping has local impacts on flows in the Rio Nambe-Pojoaque and Rio Tesuque, and these cannot be offset by San Juan-Chama Project rights. With its current rights on these rivers acquired to offset pumping impacts, Sangre de Cristo is limited to average withdrawals from the Buckman fields of 2,800 acre-feet (3,450 per ML) per year (Nunn, 1989). The firm yield of water rights owned by Sangre de Cristo will not support demand at levels projected for the year 2000. To increase the water supply from the Buckman fields, Santa Fe will have to expand the field and acquire rights in the Nambe-Pojoaque and Tesuque systems; alternatively, San Juan-Chama Project water could be diverted directly from the Rio Grande, at considerably higher cost. Current estimates are $2.4 million for expansion of the Buckman fields, excluding the cost of water rights acquisition, and $6 million or more for a surface diversion system (Santa Fe Metropolitan Water Board, 1988). Four Indian Pueblos, the Pojoaque Valley Irrigation District, the Tesuque Mutual Domestic Water Consumers Association, 28 community ditch associations, and 2,250 individual water rights holders in the Nambe, Pojoaque, and Tesuque watersheds will have their rights determined in the adjudication. Water transfers, especially transfers that remove water from community ditches, have given rise to local conflicts. Prices of water rights in the area have also been high; there were several sales at around $5,400 per acre-foot ($4,380 per ML) in the early 1980s, when the price in the Albuquerque area was about $1,000 per acre-foot ($810 per ML) (Nunn, 1989).

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Water Transfers in the West: Efficiency, Equity, and the Environment Although Santa Fe has no immediate plans to purchase additional water rights in the Nambe-Pojoaque and Tesuque systems, it seems likely that it will again be in the market for water rights in this area sometime during the next 40 years. Only rights from this local watershed will release Santa Fe's constraints on pumping from the Buckman well field, and prices for these rights are expected to be high (Nunn, 1989). Albuquerque relies exclusively on ground water from the Albuquerque aquifer, which is fed by the river. Thus for Albuquerque to expand its pumping, it must consider the effects that expansion would have on the river, because surface water and ground water are managed conjunctively in New Mexico. When the Rio Grande Underground Water Basin was declared in 1956, Albuquerque's vested rights were evaluated at 18,672 acre-feet (15,140 ML) of consumptive use in the Rio Grande. When city pumping affects the riverflow in excess of this amount, it must be offset by the purchase and retirement of surface rights (City of Albuquerque v. Reynolds, 1963). For many years the city's effect on the river was actually to increase flow levels, because of the time lag between ground water pumping and the release into the river of treated municipal effluent. Not until 1976 did Albuquerque 's pumping begin to diminish flows in the Rio Grande. The effects of Albuquerque's pumping should soon require the city to compensate for the additional rights affected. Like other cities, Albuquerque is looking to transmountain diversions to support continued growth. The city will use some of the 48,200 acre-feet (59,460 ML) of San Juan-Chama Project water it acquired in 1963 toward its debt to the Rio Grande. In the period from 2025 to 2060 (based on the present rate of population growth and per capita water use), the city will need at least 45,000 acre-feet (55,510 ML) in addition to its vested rights and San Juan-Chama Project water to offset the effects of its current and future pumping. Albuquerque has been acquiring rights gradually, based on a standing offer of $1,000 for an acre-foot ($810 per ML) of perpetual right, initiated in 1982. The city has purchased about 1,700 acre-feet (2,100 ML) of water rights in more than 25 separate transactions (Nunn, 1989). The state engineer estimates that non-Indian irrigators between Cochiti Dam and Elephant Butte have consumptive use rights for about 128,000 acre-feet (160,000 ML). Of these, approximately 65,000 acre-feet (80,180 ML) were rights developed after 1907 within the Middle Rio Grande Conservancy District. (Rights developed before the district was created in 1907 do not require district approval for a transfer.) It is not clear whether the Middle Rio Grande Conservancy District itself holds the property interest in rights developed after 1907 or whether

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Water Transfers in the West: Efficiency, Equity, and the Environment it can lease these rights, some of which are held under state law and some under federal law. The district's current policy is to discourage transfer of these water rights outside its boundaries (Nunn, 1989). Nevertheless, 63,000 acre-feet (77,710 ML) of the non-Indian agricultural water rights are outside the Middle Rio Grande Conservancy District below the Otowi Bridge Compact accounting point and can be transferred to municipalities under current rules and policies. About 7,000 acre-feet (8,640 ML) has already been purchased, leaving 56,000 acre-feet (69,080 ML) of potentially marketable rights. Albuquerque will need at least 45,000 acre-feet (55,510 ML) to make the offsets required against its well fields in the period 2030 to 2060. In addition, there will likely be an increase in water deliveries in excess of current rights in small municipalities in the middle and southern regions of the Rio Grande of about 14,000 acre-feet (17,270 ML) per year by 2030 (Nunn, 1989). By these figures, it is estimated that demand for 61,500 acre-feet (75,860 ML) or more in water rights will be competing for 56,000 acre-feet (69,080 ML) of pre-1907 irrigation rights and whatever additional contracts for the 8,000 acre-feet (9,870 ML) or so of unallocated San Juan-Chama Project water can be obtained for this area (Nunn, 1989). THIRD PARTY IMPACTS Types of Water Transfers Water transfers involving changes in the place and purpose of use of water rights held under state law have occurred regularly and with relative ease in New Mexico for decades. The state has long had a strong, highly professional state engineer whose goal was to define water rights to encourage the maximum consumptive use of the state's supplies before they flowed to other states and to Mexico. On the average, more than 100 change-of-water applications were filed per year in New Mexico from 1975 to 1987 (MacDonnell, 1990). Fifty-one percent of transfer applications involved less than 10 acre-feet (12 ML), though the average size of a transfer was 91 acre-feet (112 ML) of water. Only 4.5 percent of the applications were protested, and 93 percent of those filed were approved, with 78 percent being approved within 6 months of the date the application was filed (MacDonnell, 1990). New Mexico transfer applications are processed more quickly by the state engineer, involve fewer protests, and involve significantly lower costs in terms of attorneys' fees and consultants' expenses paid by transfer applicants than applications in neighboring southwestern states (Colby, 1990a; MacDonnell, 1990).

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Water Transfers in the West: Efficiency, Equity, and the Environment In the upper Rio Grande basin, several types of transfers are particularly important because they raise new types of public interest concerns. The first type consists of transfers from traditional small-scale acequia agriculture to recreational uses, such as snowmaking and resort development. The nationally noted Sleeper case (In re Application of Sleeper, 1985) is a paradigm of a culturally controversial transfer that would be routine in almost any other state. In this widely discussed court decision, strongly reminiscent of the John Nichols novel (and subsequent movie) about water and power in the Taos valley, The Milagro Beanfield War, a community's local ditch association protested a voluntary transfer of 75 acre-feet (92 ML) of water in Rio Arriba County to support a ski resort. The transfer was approved by the state engineer after proof that no vested water rights would be impaired, but a district judge voided the approval because the transfer was contrary to the public interest, which was defined as preservation of a local subsistence economy. A Rio Arriba native and doctor of anthropology testified that the development would provide only menial jobs for the local inhabitants and would erode the community's traditional subsistence agriculture (Parden, 1989). There is a tendency to romanticize the virtues of rural poverty, but northern New Mexico has persevered, to the extent that it has, in the celebration of these virtues, and the trial judge held that the public interest required that the preservation of cultural heritage be superior to economic development. However, the decision was reversed on appeal because the court decided that the law in effect at the time did not allow the consideration of public interest in transfers. New Mexico has since amended its transfer statute to allow public interest review of transfers, in an effort to ward off efforts by El Paso, Texas, to appropriate New Mexico ground water for use in Texas, so the case may be a forerunner of expanded public interest arguments. The focus on the efforts to block El Paso has led to a definition of public interest in terms of the long-term needs of the state for the more traditional uses of water, but there is considerable interest within the state in expanding the definition to include the preservation of ethnic identity. If there is any case that supports including such values as part of public interest criteria, New Mexico presents a truly compelling instance. Some advocates of this view draw an analogy between historic preservation zoning and local water use: they believe that local communities should be allowed to control water use by defining the public interest as the desires of the local community. This view has been endorsed by respected experts in the state (DuMars and Minnis, 1989). A second type of transfer involves sales of water rights by farm-

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Water Transfers in the West: Efficiency, Equity, and the Environment ers to urban water providers. Agriculture-to-urban transfers have occurred routinely in the Albuquerque area, as noted earlier, for more than a decade with little controversy. Most of these water rights are being leased back to the irrigators until the water is actually needed by the city. Other cities' water utilities and private developers have also purchased local senior agricultural rights (Colby, 1990b). These transfers have not been perceived as threatening the local agricultural economy and rural communities, probably because the farms are already located in an urbanizing area and farm families in this area rely extensively on off-farm jobs to supplement their farm income. In contrast to the transfers in the Albuquerque area, agriculture-to-urban transfers that have occurred near Santa Fe and Espanola in northern New Mexico have generated local opposition to the removal of water from acequia communities. A third type of transfer involves the San Juan-Chama Project. The city of Taos has a contract for project water but cannot conveniently take delivery of that water because it is located upstream of where the Rio Chama joins the Rio Grande. Instead Taos takes a quantity of water equivalent to its contract entitlements out of the Rio Grande near Taos. This, and similar exchanges, have prompted concerns about reduced flows and deterioration of riparian plants and wildlife and about reduced water available to acequias diverting from the stretch of the river between Taos and the confluence with the Rio Chama. In addition to having concerns about these exchanges, some northern New Mexico acequia representatives feel that the San Juan-Chama Project made northern New Mexico acequias much more vulnerable to future transfers and prompted the ongoing adjudications that are viewed by some as hostile to acequia interests. A fourth series of transfer-like events involves the adjudications being conducted throughout the upper Rio Grande basin. Whereas adjudications such as the Santa Fe case discussed above generally are not viewed as water transfers but simply as the confirmation of preexisting rights, in this case they have been characterized as water transfers (or even water theft) by some affected parties and have been perceived as generating third party impacts similar to those experienced when water rights are transferred to new locations or uses. A fifth type of transfer with potential third party impacts involves change of water rights ownership within an acequia. In many acequias, new residents (often Anglos) have bought land and thus acquired water rights. Although the water often is still used on the same land and for crops similar to those grown before the change in ownership, the character of the acequia may change substantially.

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Water Transfers in the West: Efficiency, Equity, and the Environment The new Anglo water rights owners often become acequia spokespersons and take over leadership roles. This trend further erodes the unique culture and community cohesiveness fostered by the traditional water use system. Impacts on Community and Environmental Values Increasing demands for water that has been used by cultures and communities living in New Mexico for centuries have led to decisions to transfer water and water rights, in some cases between hydrological basins. These transfers have had and continue to have impacts on third parties in the state. These third parties are primarily Indians, Hispanics, and, more recently, environmental uses such as recreation, wildlife, and instream values. THE ACEQUIA COMMUNITIES Spanish water use developed around the construction and maintenance of acequias (irrigation ditches). Communities, many of which continue today, developed around the acequias, and irrigators administered the allocation of water in times of shortage through ad hoc negotiations that shared the water on the basis of preexisting shares and needs (Crawford, 1987). The acequias—as both the ditches and the community institutions that managed them came to be known—controlled water allocation until the reclamation era. But they “could not . . . adapt to the large-scale investments necessary for extensive irrigation works on which further growth of the territory must depend” (Clark, 1987). Today, about 700 acequias lie in the northern part of the Rio Grande basin, watering 160,000 acres on 12,000 farms, 70 percent of which are 20 acres or less (Lovato, 1974). Acequias are now both traditional water institutions and contemporary political subdivisions of the state. They have the power to condemn land and to tax members for service and improvements. Under state law, the acequia is controlled by an elected commission and a mayordomo who, like the voters that elect them, must have shares in the ditch. Historically, the shares have been transferable outside the acequia. However, many believe that adjudication changes the acequia's water from a resource held in common to one that is owned privately by individuals. By most accounts, the water transfers and changes in patterns of water use in the upper Rio Grande basin would be characterized as economically efficient. They reallocate water from low-value crop production or meadow irrigation to more valuable second-home de-

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Water Transfers in the West: Efficiency, Equity, and the Environment velopments, snowmaking, new suburbs, and other uses for which individuals are willing to pay far more for the water than its value for crop production. However, if the less tangible values associated with traditional acequia communities are considered—such as historical significance, cultural preservation, social stability, and contributions to regional uniqueness—there is reason to encourage special considerations when water transfers involving acequias are evaluated by the state engineer's office. If one wanted to make a case for protecting communities as entities, northern New Mexico would be the example to use. Those who wish to preserve the integrity of acequia communities have argued that water rights allocation should be done at the community rather than the state level. Community advocates often draw an analogy between historic preservation zoning and acequia preservation, noting that zoning could be used in a similar manner to protect cultural areas. Historic zoning preserves the unique character of an area by prohibiting changes in the exterior of all buildings within a district without community approval. Similarly, community control could be used to review water transfers and thus discourage changes that are inconsistent with a community's vision of itself. Water allocation traditionally has been a state, not a local function, so such an approach would require a major revision of the state's water allocation laws. INDIAN COMMUNITIES There are 22 Indian reservations within the basin boundaries of the Rio Grande in New Mexico, most in northern New Mexico. These include the Jicarilla Apache Reservation, 3 Navajo communities, and 18 Indian Pueblos. It is mainly the water rights of the Pueblos that are at issue in the Rio Grande. The Pueblo Indians of northern New Mexico are heirs to an indigenous North American irrigation tradition that spread from central Mexico, Meso-America, to the Hohokam of central Arizona, to the Anasazi. “[T]he farmers of the prehistoric Southwest adopted the plant varieties that would survive and produce abundantly in the hot, dry environment and while they stored their crops for time of need, they also enhanced the success of their agricultural activities by using irrigation” (Hunt, 1987). By the time of the Spanish discovery and conquest of Mexico and the modern Southwest, the New Mexico Pueblos had developed a settled irrigation-based existence. Sophisticated land tenure arrangements existed, but they differed from the postfeudal concepts of private property brought to North America by the English. Land was not an alienable

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Water Transfers in the West: Efficiency, Equity, and the Environment commodity but a community or family, often matriarchical, resource. In Anglo-American terms, clans and individuals acquired the right to use specific plots rather than ownership of land. Indian water rights are equally complicated, although for different reasons. Indigenous practices are the basis for Pueblo water rights, but the form is the product of Anglo jurisprudence. This is a source of frustration to some tribal leaders. In addition, the Pueblos see water both as a commodity to be developed and traded and as a spiritual resource. Water rights of several Pueblos are being adjudicated. They clearly have rights, but federal court decisions have determined that the Winters doctrine (described in Chapter 3) is not the only basis for Pueblo water rights because of a history of Spanish and Mexican recognition of the Pueblo Indians' settled way of life in permanent villages. Title to Pueblo land has always been legally different from that in other Indian communities. These-prior titles were recognized by the United States when it took over control of Mexican territory under the Treaty of Guadalupe Hidalgo in 1848. Pueblo Indian water rights are complicated because of this history. In an ongoing adjudication north of Santa Fe (New Mexico v. Aamodt, 1976), the court developed a two-tiered system of Pueblo water rights. Pueblo lands held before U.S. sovereignty hold aboriginal water rights. Lands acquired afterward carry with them Winters rights. To complicate matters, the court held that the Pueblo Lands Act of 1924 also “fixed the measure of pueblo water rights to acreage irrigated as of that date.” If the concept of this case is upheld on appeal, the Pueblo Lands Act must be interpreted to determine the upper limit placed on Pueblo water rights by Congress. The adjudication has established that Pueblo water rights with aboriginal priorities do exist, although the doctrinal basis differs from general federal reserved Indian rights. Pueblo leaders have expressed some frustration with the adjudication process. They do not object to the substance of the rights declared but to the fact that the process is non-Indian. INSTREAM FLOW This case study focused almost exclusively on the consumptive use of water by Hispanic and Indian users. There is an environmental dimension to these claims because they are generally directed at preservation of the status quo. Northern New Mexico does have traditional environmental problems. The area has high-quality instream flows as well as stresses on rivers used for recreation. Endangered species protection has not played as large a role in northern

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Water Transfers in the West: Efficiency, Equity, and the Environment As the Rio Grande River enters New Mexico from Colorado, it flows undiminished for about 70 miles (112 km). This reach is used by rafters, sightseers, and others. Farther downstream, north of Espanola, diversion dams and irrigation begin influencing the mainstem of the river. CREDIT: Todd Sargent, University of Arizona. New Mexico as in the Truckee-Carson or Yakima basins, but water management will have to accommodate this use in the future. New Mexico, almost alone among the western states, has not joined the movement to adopt new laws to protect instream flows. Legislation to protect streamflows was introduced in the New Mexico legislature several times in the 1980s, but no laws were passed. However, there have been nonlegislative case-by-case efforts to maintain instream flows in important reaches of the Rio Grande basin of New Mexico. White water rafting groups have negotiated with Albuquerque and the Middle Rio Grande Conservancy District to enhance recreational opportunities on the Rio Chama. The city and district have agreed, on a year-by-year basis, to schedule their summer releases from El Vado Reservoir to correspond with weekend rafting needs in the stretch above Abiquiu Reservoir. The Bureau of Reclamation has also cooperated over the past several years by extending the San Juan-Chama annual water delivery deadline from December 31 to April in order to allow for more consistent flow to maintain winter fisheries. The bureau has also recognized Indian religion and culture by agreeing to release a minimum natural flow from Nambe Falls Dam to ensure that 0.5 cubic

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Water Transfers in the West: Efficiency, Equity, and the Environment foot per second is maintained at Nambe Falls. Federal agencies are also working to protect or enhance instream flows by claiming rights in court based on federal law. Other recent studies document the continued importance of reliable streamflows to the New Mexico economy, which relies heavily on outdoor recreation and tourism (Ward, 1987). Endangered species protection for fish in the San Juan and Delores river basins may require instream flow designations by New Mexico. The matter is being pursued as a part of broader efforts to make the Animas-La Plata Project acceptable from an endangered species perspective and to implement the southern Colorado Ute water settlement passed by Congress. CONCLUSIONS Northern New Mexico teaches two important, related lessons for future water management. First, the promotion of efficiency—as it has been defined by federal and state water policies—can have detrimental impacts on low-income, culturally different users. These users are at risk when water administrators seek to maximize the economic value of water by project development or water marketing. Second, it is not easy to incorporate heightened sensitivity to social and economic inequities into the structure of existing water allocation institutions. Study of water transfers in northern New Mexico makes clear the need to broaden the definition of public interest to acknowledge the value of water to community cohesiveness, along with the more typical factors considered. The Hispanic community of northern New Mexico, for example, considers itself a third party affected by almost every water decision —determinations of water rights, transfer of a parcel of land from one owner to another, and changes in the place or use of a water right. State water law considers the public interest in new appropriations and transfers, but fails to include in such considerations the traditional community values tied to water. An expanded definition of public interest is crucial because Hispanics have scant resources to protect their interests in water transfers affecting them. They also must confront daunting challenges in trying to remedy past shortcomings in adjudications that often overlook their rights. Small water transfers in New Mexico, in these circumstances, face acute and complex challenges that would be unlikely to arise in most other states. New Mexico has now enacted legislation prohibiting the transfer of a water right from one use or place to another where the effect would be “detrimental to the public welfare or contrary to the conservation

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Water Transfers in the West: Efficiency, Equity, and the Environment One Perspective on Adjudications: “Dancing for Water” “[E]veryone has been startled at least once by the miraculous imagery of the saying that water can be made to flow uphill toward money. It is perhaps part of the genius of the image that for the moment at least it seems to settle the arguments that bring it into play. Everything has its price. We live in a world of buying and selling. We all know that. What else can we say? “Yet we also live in a world of other kinds of value, and sooner or later we will need to ask whether it is good for anything but money that water can be made to flow uphill, whether it is bad for streams, rivers, traditions, communities, and even individuals. “Several weeks ago I sat in on a water rights adjudication hearing in Santa Fe—my first, so I was able to pretend to view it through somewhat innocent eyes. There was the small, cramped courtroom in the federal courthouse, probably not unlike courtrooms and hearing rooms where these proceedings have droned on in New Mexico for hours and days and months and even years and decades. There were the twenty-five or thirty silent, patient defendants, Questa landowners, working men, probably miners or former miners, Hispanic all, dressed in plaid western shirts and cowboy boots. There were the attorneys and legal assistants for the Office of the State Engineer, four in all, Anglos all, with their table covered with huge aerial photographs, yellow legal pads, clipboards of lists, notebooks. There was the plaintiffs ' comparatively empty table, presided over by a lone attorney from Northern New Mexico Legal Services and a volunteer assistant from Questa. There was a tripod from which hung detailed maps of the section of Questa being debated, with parcels of land blocked out in green and red and pink. There was the imitation wood panelled box of the witness stand where sat, during my time there, a succession of Mr. Raels and Mr. Valdezes. There was the judge, a kindly black-suited gentlemen who patiently elicited and presided over a river of minutiae about fences and culverts and walls and houses and ditches and pastures and the placement of this or that boulder, all of which made up the substance of the proceeding. “What I witnessed for a few hours was the operation of that legal mechanism by which water is prepared for its eventual pumping toward money. It has to be adjudicated, it has to have its claims of ownership documented, it has to have its title quieted, it has to be made merchantable, saleable, which is what enables it to be freed up from land, acequia, community, and tradition. . . .

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Water Transfers in the West: Efficiency, Equity, and the Environment “Water should go—we all know—to those who tend it, who use it, who love it, who dance for it, and it should flow downhill from stream to river, and river to sea. Yet we have licensed our society to scheme for it to flow toward those with money and power, and we have turned over our public servants to them, we have in effect given them the keys to the treasury so that no expense will be spared in drawing lines, making maps, conducting research, making surveys, and filling vaults and basements with mountains of legal testimony. “What is oddest of all—I thought as I regained the open sky of a fretful March afternoon —is that all this legalistic hairsplitting over water rights needs the long-term ratifications of the weather in order to work at all. And the weather, of course, is what no one can ever bring to court. Being, I suppose you would say, above the law. Capable, in short, of rendering the vast social labor of adjudication quite irrelevant —in these times of rapid climatic change all over the globe. A kind of higher adjudication of the environment, you might say, that could be trying to tell us that fooling around with the elements is something we should think and talk long and carefully about before anything else, and in ways that make us all more neighborly, not less so. ” SOURCE: Crawford (1990). of water” (New Mexico Statutes Annotated § 72-12-7 (replaced 1975)). The statute was enacted in an effort to ward off attempts by El Paso, Texas, to appropriate New Mexico ground water for use in Texas, but it could be the basis for expanded public interest review of intrastate as well as interstate transfers. The focus on the efforts to block El Paso has led to a definition of public interest in terms of the long-term needs of the state for the more traditional uses of water, but there is considerable interest within the state in expanding the definition to include the preservation of ethnic identity. Questions remain, however, about whether a fair determination of the public welfare can be made in the administrative and judicial arena (DuMars and Minnis, 1989) and whether this decision should be made at the state or local level. If there is a compelling case illustrating an instance in which community identity can be seen as a public interest value, it is New Mexico. This case shows how a combination of economic and noneconomic values supports the preservation of the traditional water

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Water Transfers in the West: Efficiency, Equity, and the Environment allocation system. It adds weight to the argument that public welfare interests can best be determined at the local level by a regional water planning process (DuMars and Minnis, 1989). Such an approach could, in the end, expedite transfers by building public confidence in the fairness of evaluation procedures and by reducing uncertainty about what standards apply. REFERENCES Bureau of Business and Economic Research. 1989. City of Albuquerque v. Reynolds, 71 N.M. 428, 379 P.2d 73 ( 1963). Clark, I. 1987. P. 100 in Water in New Mexico: A History of Its Management and Use. Albuquerque: University of New Mexico Press. Colby, B. G. 1990a. Enhancing instream flow values in an era of water marketing. Water Resources Research 26(6):1113-1120. Colby, B. G. 1990b. Transactions costs and efficiency in western water. American Journal of Agricultural Economics 72(5):1184-1192. Crawford, S. 1987. Mayordomo. New York: Doubleday. Crawford, S. 1990. Dancing for water. Journal of the West 32:265-266. DuMars, C. T., and M. Minnis. 1989. New Mexico water law: Determining public welfare values in water rights allocation. Arizona Law Review 31:817-839. Folk-Williams, J. A., and L. Hilgendorf. 1982. What Indian Water Means to the West. Santa Fe, N. Mex.: Western Network. 153 pp. Forrest, S. 1989. P. 3 in The Preservation of the Village: New Mexico's Hispanics and the New Deal. Albuquerque: University of New Mexico Press. Hunt, R. D. 1987. Indian Agriculture in America: Prehistory to the Present. Lawrence: University of Kansas Press. In re Application of Sleeper, No. RA 84-53 N.M. Dist. Court for Rio Arriba County ( 1985). Lovato, P. 1974. Las Acequias del Norte. New Mexico State Planning Commission, Taos, N. Mex. MacDonnell, L. 1990. Shifting the uses of water in the West: An overview. In L. MacDonnell, ed., Moving the West's Water to New Uses: Winners and Losers. Boulder: University of Colorado, Natural Resources Law Center. Meyer, M. 1984. P. 134 in Water in the Hispanic Southwest. Tucson: University of Arizona Press. New Mexico v. Aamodt, 537 F.2d 1102, 10th Cir. ( 1976). Nunn, S. C. 1989. Trading Conserved Water: Market Incentives for Agricultural Conservation . Albuquerque: University of New Mexico, Department of Economics. Parden, S. 1989. The Milagro Beanfield War revisited in Escenada Land and Water Association v. Sleeper: Public welfare defies transfer of water rights. Natural Resources Journal 29:861. Santa Fe Metropolitan Water Board. 1988. Long Range Water Planning Study for the Santa Fe Area, Phase I Report . Santa Fe, N. Mex. Shupe, S. J., and J. Folk-Williams. 1988. The Upper Rio Grande: A Guide to Decision Making. Sante Fe, N. Mex.: Western Network. Ward, F. A. 1987. Economics of water allocation to instream uses in a fully appropriated river basin: Evidence from a New Mexico wild river. Water Resources Research 23:381-392.