Unsettled Waters. Eric P. Perramond
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Название: Unsettled Waters
Автор: Eric P. Perramond
Издательство: Ingram
Жанр: История
Серия: Critical Environments: Nature, Science, and Politics
isbn: 9780520971127
isbn:
By the late 1800s, it was clear that there was not enough water in the Rio Chupadero to provide for year-round cropping. In 1897, residents created a written convenio with their neighbors just to the north in the village of Rio en Medio to share the water that came from the river by the same name. That agreement details a water-sharing plan whereby “more than half” of the water at the splitter box is to go on its normal path to the village of Rio en Medio, with the right half of the box’s flow going on to the ephemerally dry Rio Chupadero channel. A connection canal was built after 1897, between the splitter box and the actual dry channel of the Rio Chupadero, to ensure flows reach the upper ditches and the village of Chupadero.
To this day, one can visit the 1897 splitter box on the Rio en Medio. The right-hand side diversion carries a portion of the flow down a transition canal, cut along the contour and gradient, and then releases it into the natural channel of the Rio Chupadero (see figure 3). This flow feeds into the acequias and several ditches, one of which goes down to the village of Chupadero. It is an intricate, elaborate, gravity-fed system like most of these hand-dug ditches. It is also an example of a transbasin diversion that predates most of the massive twentieth-century federal projects.
FIGURE 3. A mayordomo stands on the banks of the connecting canal that brings water from the Rio en Medio splitter box, agreed to in the 1897 convenio, to the upper ditches of the Chupadero Valley. Photo by the author, 2009.
The arrangement is an example of what was “normal” yet informal between acequia villages throughout New Mexico. The fact that the two villages were compelled to put their agreement in writing and file it with the Santa Fe County Clerk is evidence that New Mexicans were already aware of the new legal culture slowly remapping their state. Most agreements on water sharing were largely done with a handshake, or standing oral agreement, prior to the late nineteenth century. Forcing prior appropriation onto the acequia villages and stream systems created antagonism, even in tiny villages with a long history of sharing. With adjudication, water was no longer a shared, communal enterprise. It was state property yet with property-use rights determined by historical dates, and the state allocated water according to what people were using on their land.
This legal change started to rework the connections between people and water, relationships between water users, and even worldviews on the purpose of water. The convenio was a legal performance for the territorial courts prior to New Mexico becoming a state (1912), but it officially inscribed the two communities’ long-held beliefs about shared water. In legal language and in writing, the convenio formalized the informal to make it legible for the state. Here, too, infrastructure and customary law were tied together. Yet the convenio did not stop all challenges, the most notable of which were revived by the Aamodt adjudication case. Water rights are ranked by first beneficial use date. Under prior appropriation, water users strive to prove the earliest use date possible, hoping to secure senior rights.
Aamodt spurred a scramble for earliest use dates among residents of tiny Chupadero and Rio en Medio. In some cases they contested the dates found by the contract historian and dates in their own oral histories. The OSE contract historian at the time, John Q. Baxter, determined a first date of stream diversion and beneficial use of 1878 for Rio en Medio, which suited those in Rio en Medio just fine. Some upper-ditch users in the Chupadero Valley claimed and were awarded an earlier date of 1863 for the natural flow of the Chupadero River only. The bulk of the flow, however, for both valleys, is dependent on the original 1878 diversion from the Rio en Medio. Only the upper ditch of the Chupadero, then, can claim some natural Chupadero River flow as a prior date. But not much water flows in this stream system without the augmented Rio en Medio waters channeled from the canal (in figure 3).
Hence, a single date of 1878 generally governs the entire Chupadero stream system, save for that one upper ditch. After several decades of squabbling over what the exact priority dates would be in each valley and parcel, they were bound back to the agreement they had in place since 1897. They had to abide by the convenio (see figure 4) and the historical record accepted by the state.
FIGURE 4. The historic 1897 convenio document that allowed sharing of water from the Rio en Medio stream to a ditch that connects to the upper reaches of the Rio Chupadero, New Mexico. Photo by the author. From the Santa Fe County Clerk’s Office.
The two villages had none of the legal identity binary fights present in the wider Aamodt case. They had long shared the water from the Rio en Medio. However, Aamodt brought up both old arrangements—and debates about phrasing and meaning—as well as new temptations to leap-frog individual priority dates. Residents of both villages were lured into claiming more “senior” dates to ensure first-in-time access to water but ultimately fell back to the 1897 arrangement. The story of Chupadero and Rio en Medio reflects the struggles of a communal water culture being forced into a system of individual water rights based on prior appropriation. In the end, adjudication did not change much, other than raising hackles between the two valleys and between ditches. Their resolution, to continue sharing the limited waters, highlights the potential solutions hidden in local, historic accords that preexisted the state’s interests in water rights.
In 2016, to add to the saga, I met a water user from Rio en Medio at the statewide meeting of the acequia ditches who raised the question about reclaiming some of that shared water. He wondered aloud, “if some of that winter water doesn’t legally belong back to our village (Rio en Medio) since no one is irrigating [in Chupadero].”27 He was hoping for water to fill his stream in the nonirrigating season, an aesthetic and water-for-the-river argument. No action has yet resulted from this, but his idea highlights that new valuations of water—amenity, aesthetic, or ecological in nature—may shift the arrangement again at some point. This short story about two villages that share much in common, not just water, also highlights that adjudication was not just about identity issues in the Pojoaque. Adjudication roiled the customary arrangements and water sharing, even as the larger Aamodt case was reaching settlement phase negotiations around the year 2000.
THE RELUCTANT SETTLING FOR VISIBLE AND INVISIBLE WATER
As Chupadero and Rio en Medio were inching toward reaffirming their standing agreement, so was the larger Aamodt case. A formal settlement process finally began in 2000 and was reached in 2006. By 2010, forty-four years after its initial filing and thirty years after the death of the state engineer (Reynolds) who filed it, the Aamodt settlement was finally and formally funded by the state and federal governments.28 By then, the case had outlived multiple judges and at least a dozen OSE and private attorneys. Lee Aamodt, the first listed defendant in the case and a scientist from Los Alamos, had become better known for this case than for his scientific contributions. The Aamodt case was its own live, legal reality show before such a thing existed. Settlement would be almost as exhausting as adjudication. But everyone was tired of formal litigation in the courtroom.
As one of the Aamodt settlement instigators told me back in 2010, “I’m honestly tired of it, Eric, and I won’t go back [to litigation] no matter how much they hate me.” We were discussing the recently funded settlement act. He continued:
Oddly enough, some of the group had tentatively approached the Pueblos back in СКАЧАТЬ