Communities, Common Water Resources & Jurisdiction

This is a follow-on to John Brown’s essay “To Thrive in a Climate-challenged World, New Mexicans Should Govern Our Water as a Commons.” We need to grapple with our present situation, legal environment, and predictions, but these are likely to change. We have to ask whether our present water management regime can actually bring about the resilience of the water commons and whether we can somehow adapt, beginning with our local communities.

In support of the Water Security Planning Act, unanimously passed in 2023, the ISC will be working with the Water Advocates and others to form new Water Planning Regions. The hierarchy of the water administration has been laid out, but it seems when we get down to local communities, it gets muddy. We haven’t yet defined what a local community consists of and its role in water management. And we assume that these communities exist. They mostly don’t. So, we eventually need to enable the creation of them, but communities are not going to respond or establish themselves only to be a minuscule part of a water plan. They must be empowered.  

Imagine a scenario where every water user who is an actual person is a member of one of these local communities. The communities need to be small, as making decisions over a commonly held water resource becomes unwieldy beyond face-to-face governance. The water held by these communities has to be determined and granted. That is the role of the State. The State could conduct a “Commons Central” where the resource is constantly determined and assigned. An altered present priority administration of rights could serve as a foundation, continuing major obligations. We might even return rights back to the land where they really belong. Rules should accommodate these communities and enable them to make ongoing decisions. Nonperson users beyond the natural world would be subject to shortage restrictions like all others and would have to justify their use to the community.

We have to do something to move out of the present morass. The water as a commons has been the rule until modern times, so there is a large history. We need to revive our past awareness.  

Of course, this means that major changes to our water code would have to happen, which, I believe, is only going to occur under duress. But duress might be right around the corner. Our major water systems might not survive a reduced resource as they require a threshold of supply to operate. This is already happening on the Colorado River. We need to prepare for such conundrums. It all goes back to “small is beautiful”.

I refer you to an essay on small governance by Eliza Daley of Vermont (who emigrated to New England from New Mexico):

Vermont and New Mexico have a lot in common. Our legislatures meet for limited times and are mostly voluntary (Vermont pays legislators $1/yr.) Vermont has a colorful history, being a republic at one time. New Mexico has an even more colorful history (we might want to access that and find where we went wrong to steer us straight.) 

The governance that acequias employs is nearly identical to a Vermont Town Hall Meeting. Very little time is spent on governance and a lot of time carrying it out. People would rather do things than talk about them. Life has too many hassles as it is.

To build real resilience, people need to know how to care for and honor their water. Unlike Vermont, our water is a serious commons. Small communities do not control their water sources, which can be hundreds of miles away or directly underneath. Each community needs to have multiple sources of water, which will require much ingenuity.

Our culture has abandoned local stewardship and provision. Resilience is using what is at hand to provide necessities and being flexible enough to alter things immediately and onsite. Ingenuity, which I call rustic engineering, is the fuel that makes it work.

Presently these small communities, unlike in Vermont, have no legal status. The hierarchy of governments does not include them. They are under the jurisdiction of municipalities or counties and have no agency over their resources. They are entities to be exploited. We must free these communities even if they don’t have a sufficient tax base to incorporate. The acequias provide a good example.

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Implementing community stewardship of their water would mean starting over legally, in some respects. Legal hurdles are very high as our water code, and its interpretation are seen as set in stone and unapproachable. But the water code begins:

All natural waters flowing in streams and watercourses, whether such be perennial, or torrential, within the limits of the state of New Mexico, belong to the public and are subject to appropriation for beneficial use.

This could be interpreted to mean the water is a commons—if small communities could hold water rights in common. Perhaps the courts have had it wrong all along, following the desire to exploit the resource for further development without any regard for its true conservation. The present interpretation allows for diminishment or even permanent destruction of the resource. The legislature and courts must be confronted with this—an ongoing process.

The largest hurdle is priority administration and the privatization of water rights. Continuing with this will result in little water for anyone or anything. As a personal example, I own senior water rights to eight acres of ancient farmland on Las Huertas Creek in Placitas served by a spring and acequia. For many years I used the water for my farm, bringing produce to market. Despite taking the State Engineer to the NM Supreme Court, using my water rights to protect the water, and obtaining a reasonable judgment, the expansion of groundwater pumping in the area caused the spring to nearly dry up and be useless. Thus my senior privately held water rights are not worth the paper my claim is on. A similar fate will eventually come to all senior surface rights holders. So we must come to an accommodation.

Small communities with non-acequia agriculture and farmers supported by water rights would have those rights incorporated into their commons, but only for agriculture. The community would negotiate shortage-sharing agreements with the growers to ensure sufficient local food and fiber production without harm to the resource.

Another change would be real conjunctive use management between surface and groundwater. The legislature and courts have again failed to protect them either by enabling serious loopholes and not tasking and funding the OSE to protect them. Now that data is building concerning groundwater, the excuse that “we don’t know, so we will pump” is obsolete. Local land use regulations and decisions must meet water reality.

The promising news is that the ISC recognizes the critical role of small communities as part of regional water planning required by the WPSA. But forming new communities will be a challenge, and we need to consider models like the historical success of local acequias or other governance models, as we see in Vermont, to fully empower the communities to protect our water commons. 

If we don’t start to truly protect our water for the future, the future will be, should I say, parched.

Lynn Montgomery is a long-time small community and water advocate, is on the Board of the Water Advocates of New Mexico and the Middle Rio Grande, and is chairman of the Board of Supervisors for the Coronado Soil and Water Conservation District. 

1 Comment

  1. James Scott Boyd on January 22, 2024 at 2:26 am

    Lynn you contradict yourself. You speak of commons and water back to the original lands. The Follet report of 1896 pretty much surveys all these lovely communities that had prior rights. As you know my great grandpa started the Elephant Butte irrigation system. At that time priority rights of the local communities developed modern irrigation that my ancestors developed in Australia, Egypt, India and here in New Mexico, Elephant Butte dam. DR Nathan Boyd who was the renound expert on water conservation designed EB dam to be half the size. But AB Fall who brought Boyd to invest in the Project owned interests in the railroad and concrete company to build a monolith dam taking economics and water management out of scale. John Utton as well as Bill Turner realizing massive evaporation from building the dam to large, that cause great evaporation fanning out the lakes upper reached, allowing the sun to do its think, causing evaporation. If one reads the beginning of the Rio Grande Compact negotiations, explains Boyd defeated the federal navigation war power and treaty claims that attacked the company. Folks in New Mexico not to dismiss climate fear warriors like John Fleck, is and has always been for thousands of years an arid land. With great possibility of floods occasionally, the building of EB dam was to create a dependable water supply for Southrrn New Mexico, which it did. Many blame Dr Boyd for todays problemd, but it was ABFall who sold out to DC who took over the project by fraud, illegal war powers, by the New Mexico courts. Water experts like John Fleck leave out this important history as the origins of the MRGCD are unknown to many. After the BOR first stole the project from Sountern New Mexico farmerd who finished building the EB dam twice the size, great evaporation was used as excuse ever since the compact, which has been used to drain the lake so Alb and SF can build 60k new homes each year. I believe the priority doctrine destroyed by federal BOR federal reserve rights and an unaccountable OSE that failed to adjudicate the senior rights, which were historically vested up and down the Rio Grande, can only be held in common of local communities under a priority administration. That is the problem. Without an adjudicationban and enforcement of senior rights to the so call navigation and public claims bybthe OSE claims that lost in the original case US vs RGDIC as well as treaty with Mexico, is the only solution to bring back law and order amd a fair legal administration of rights.
    Everyone should be following the Lower Rio Grande state adjudication. I just proved last year there was a completion of diversions that vested all the farmers water rights senior to the unaccountable administration by the collusion of the BOR and OSE.
    Reynolds in The Augustine case lied and said Dr Boyd wanted to take control of the Rio Grande and sale it. IEver since the fraud by the goverments againt sourhern Nm it has led to an unaccountable century of water management by the governments who have stole the water from local control to give it out by political favors by judges and governments who have failed and are continuing to fail under their obligation of enforcing the property rights before the governments took charge. The courts and governments are to blame, not global warming for our current water situation.



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