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Good Water Policy Staring Us in the Face

New Mexico's Acequias Bring the Water Debate Down to Earth

It amazes me these days to listen to the discussion over water issues and to contrast what is being said by government decision-makers with what is being said by rural community members and acequia members.

Government officials sound a lot like technicians, struggling to establish the needed infrastructure, as if the problem of getting additional water to the developing areas of the state were no more than a challenging plumbing problem. In this sense, their approach sounds abstract and non-ideological, although occasionally, they will extol the virtues of the market for moving water and water rights to where they are "most needed".

Rural residents, on the other hand, question whether we as a state have fully considered how the human landscape of New Mexico would change if we were to transfer large quantities of water rights from one region to another. Acequia leaders are more likely to use the words "life-giving," "lifeblood," "survival," and "community resource" when talking about water. Their words evoke an image of water as a vital organ, upon which each community depends, and without which a community could not survive. To them, water policy should be premised on the fundamental right of communities to maintain the resources they need to survive.

Indeed this is an example of those being led having far more insight than those doing the leading. The transfer of water and water rights is much more consequential than our leaders have indicated. We have only to look at the examples of the Owens Valley in California, the Arkansas River Valley in Colorado, and numerous other instances in which entire rural regions of states have died due to the export of their water.

A Different Path?

If New Mexico is to take a path that is different from the trajectory seen in so many Western states, it will only be because policy-makers and the public are presented with policy alternatives that reflect deeper values than simply satisfying the needs of the market. These deeper values go beyond, for example, the value of acequias as cultural features unique to the Southwest. These deeper values address critical questions of what our water use and water institutions ideally should look like.

Do we value appropriate technology? (Acequias are small-scale, gravity-operated systems that use no fossil fuels in delivering water.) Do we value sustainable water use? (Acequias are inherently sustainable systems; they do not "mine" the water supply the way many underground water systems unsustainably mine out aquifers, using only what the surface water system supplies.) Do we value expanded riparian areas in a semiarid environment (which acequias have created)? Do we value safe and healthy agricultural products (i.e., pesticide- and herbicide-free)? Do we value self-reliance, non-dependence on governmental largesse (unlike the subsidized mega-water projects in the agribusiness regions of California)? Do we value the survival of rural communities? Do we value family farms? Do we value a food supply that is locally produced? Do we value local democratic decision-making, community-building, and public participation in water management? All these things that we value and try very hard to incorporate into other facets of our society, acequias have been doing for centuries. Acequias stand as examples of "water democracies" that writers like Vandana Shiva assert are the necessary response to the global trend of water commodification and privatization. Certainly our water policy should protect water institutions that for so long have operated sustainably and compatibly with their local environment, and not weaken or dismantle them, through water transfers.

Manifest Destiny, Twenty-First Century Style

In the current water debate, we have sought two things:

First, to go beyond the idea that the market is the way to solve every problem having to do with water. There are other important considerations that should be part of a water policy and we need to have policies in place to protect these things that we value as a state before simply treating every water right everywhere in the state as a commodity.

Secondly, to proceed in our treatment of acequia water rights from the starting point that even though there are individual owners of the water rights, an acequia is a community -entity and any decision about transferring acequia rights is for the acequia to make on the community level. (This, incidentally, is how we regard Pueblo and most other tribal water rights; federal law regards the Pueblo or the tribe, and not the individual water user, as the owner of the water right.)

Many people do not regard these as particularly unreasonable policies. But to many others of the participants and decision-makers in the current discussion, there is a very real "manifest destiny" kind of urgency which attempts to sweep aside these concerns:

• We are told, for example that the many people who are moving to New Mexico have a right to water, and other considerations must give way so their rights can be satisfied. (This is not unlike how we as a country during the nineteenth century argued that there was no more room for people "back east" and that the right of people to have their own piece of land was surely more important than any treaty promises we may have made.)
• We also hear that acequias and acequia crops use a lot of water, and that cities can make much more efficient and productive use of water and should be able to move those water rights wherever they can get them. (Of course, we said the same thing about lands reserved to the tribes, how all that vast unused, unfarmed land was "going to waste", and in that way we justified taking treaty--protected lands.)
• We hear that treating acequia water rights as individual private property rights is more appropriate than treating them as community resources. (This harks back to our national ideology in the 1800s, i.e., that private property was the genius of our system, and that cultures based on community-managed property were inferior.)
• We see water speculators seeking out vulnerable acequia members to sell off their water rights behind the back of their own community, publishing legally-required notices of water transfers in the back pages of obscure newspapers so as to give as little community notice as possible. (Not unlike the way the government-anointed "chiefs", who had no authority and who acted without the knowledge or consent of the tribe, to sign off on one-sided treaties.)

It is not that the arguments we hear are not legitimate points of discussion. But the way in which we as a society will address these issues, in my opinion, will tell us how far in fact we have progressed since the days of nineteenth-century manifest destiny. What principles will we hold to as we make decisions about growth and development? There's no question in my mind that people in New Mexico do not want to see the acequias sacrificed for the sake of doubling the population of Santa Fe County or Bernalillo County or Sandoval County. But it remains to be seen whether that sentiment is insisted upon, politically, so that our elected leaders are "led" to the most appropriate water policy.

David Benavides is a staff attorney with Community & Indian Legal Services whose focus is on acequia and water rights issues. He lives and works in Santa Fe, New Mexico. If you are interested in working on these issues, contact David at (505) 982-9886, ext. 111. You can also contact the New Mexico Acequia Association at (505) 747-4664 or (505) 345-7701 (www.lasacequias.org) for more information.