Unsettled Waters. Eric P. Perramond

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СКАЧАТЬ rights. To the prior water sovereigns, on the other hand, the process can seem ominous as the multiple understandings of water are “cored” by the state in a single and simplifying way. For people like Hector or Miguel, this state redefinition of communal water into individual water rights is a violent one, even if that violence is slow, gradual, and often invisible.

      It is important to note that water rights can be sold prior to adjudication or even during an ongoing adjudication.¹³ Adjudication is the state recognition of individual usufruct property rights, not an automatic pathway to selling water. This means that landed property owners who have water-use rights can choose to sever their water rights from the land if, for example, they choose to stop farming and irrigating their lands. Then the water, priced per acre, is no longer just a private-use property right but has become monetized, a commodity that can be transferred. The amount of money paid per acre has everything to do with location. A nearby city interested in acquiring water rights might pay up to $50,000 per acre-foot. If the farm is in an isolated rural setting, the price will often be half or a third as much.

      The legal process does make those water rights more visible to potential buyers. The state itself is not commoditizing water per se—it is simply mapping, accounting for, and creating an inventory for water rights across the state. The Office of the State Engineer (OSE) does individuate and locate that private water right in time and space, by crop duty for the amount of water per acre needed or used, allowing for future marketing of water. Attorneys, water bankers, willing buyers, and water-rights owners then mobilize that water market to price the water itself. From the state’s perspective, the 1907 water code was simply created to affirm and map individual property rights as a neutral process. State officials I spoke with were often frustrated by local perceptions of adjudication. Nevertheless, state technicians and attorneys should understand that these suspicions and attitudes are based on repeated experiences of past resource access losses.

      Antonio from Truchas expressed a common concern regarding potential water transfers. “Losing our water from this ditch would leave a deep cultural wound that we’d never recover from,” he said. His fears may sound extreme, but they are not unjustified. Water moves across basins in the contemporary western United States. This suspicion about making waters nonlocal, held by multigenerational New Mexicans, is often unintentionally confirmed by engineers, attorneys, and state engineer officials. Attend any public meeting on water in New Mexico (and elsewhere in the United States) and you will hear water experts and housing developers calling for water to be put to its “highest economic use.” What they mean is for water to be moved from X function to Y function so as to generate greater economic value per acre-foot. When farmers or rural residents hear this, what they hear is “let’s get water away from farmers and ditches … and get it to the suburbs, the city, industries, or more suburbs.” This neoliberal and triumphalist free market rhetoric confirms the worst fears of farmers as just another way to put a price on water and move it to cities and industries.¹⁴

      Miguel, Hector, and most other irrigators understand that adjudicating water rights and potentially selling water rights are two different things, yet they see them as intricately and sequentially linked. Hector told me about a visit from a county tax assessor to stress his point. In Hector’s recounting, the assessor claimed, “I’m not here to raise your taxes. I’m just valuing what you have. Taxes are set by the county commissioners, not me.” Hector answered this assessor with, “Yeah, but if you don’t raise the assessment, then my taxes won’t go up, right?” Thus, in a similar vein, Hector sees adjudication as the flywheel for pricing, selling, and ultimately moving water across basins.

      Every potential sale away from the acequia, from the village, would mean less water for local use. Selling water rights away from the community does not just move the water; it erodes the basis for a shared water community that has undergirded many small villages across New Mexico for generations. The push to formalize water rights at an individual level can have serious consequences for other kinds of property arrangements that are community based.¹⁵

      THE PRODUCTION OF STATE WATER

      Mandated in the 1907 water code, water rights adjudication in New Mexico was designed to map all perfected (in use) water rights. Water was declared state-owned and public, yet the individual-use rights to water would be privately held. New Mexico does not distinguish or rank the order of beneficial-use categories among agricultural, urban, and industrial and treats all water uses equally. Beneficial use of water is the basis for water rights, the measure for water rights (based on amount of use), and the limit (maximum award) for the awarding of water rights and is rooted in prior appropriation law. The presumption is that beneficial use has economic benefits, although this definition has become more expansive in the twentieth century and often includes recreation and instream flows. Prior appropriation also established a historical ordering of first-in-time, first-in-right for the use of water: the earlier the use, the better (or more senior) the water right.

      In more than a century since 1907, only about a dozen basins or subbasins have reached the final decreed stage of adjudication and are considered “complete” (see map 3 for completed and pending adjudications as of 2017). Most early adjudications, between 1910 and 1950, were executed in basins with low populations and with few Hispano acequia claims or unquantified Indian water rights involved. What remains to be finished is daunting.

MAP 3. Locations of completed and pending stream adjudications in New Mexico as of 2017. Dark shading with cross-hatching, like the Jemez River Basin, designates areas where all non-Indian claims are filed but Indian water rights have yet to be determined. Adapted from New Mexico Office of the State Engineer map sources.

      The state water code charged the OSE with conducting so-called general stream adjudications. General is a misnomer. Universal might be a better descriptor. The work is specific and meticulous and, by design, not particularly efficient.¹⁶ Given this massive task, it is understandable why adjudication took so long to begin and why it is still ongoing. Since its inception, the agency tasked with adjudication, the OSE, has struggled with low staffing, underfunding, and the scale of the process. Adding resources and personnel is difficult. New Mexico is one of the poorest states in the country, and as the former head of the legal division at OSE, D. L. Sanders, put it in 2006: “No Governor wants responsibility for making government larger.”¹⁷

      New Mexico’s water adjudication process consists of seven general steps (shown in figure 2). These legal suits are prepared by the OSE and then triggered in concert with the state’s attorney general.

FIGURE 2. Simplified flowchart of the water rights adjudication process in New Mexico. Adapted from the New Mexico Office of the State Engineer and WaterMatters! (Utton Law School: University of New Mexico, 2013).

      Each stream adjudication is more complicated than the diagram shown would suggest, and many of the steps in each phase are revisited multiple times. While every adjudication is unique, all include the three main phases shown in figure 2: the research and hydrographic work, the “subfile offers” to individuals, and the larger between-parties inter se process, whereby individuals get to question the rights claimed by other water rights users. While difficult, the technical and research stages of adjudication (in phase one) take far less time than the more contentious courtroom-based procedures on water rights between the parties.

      WHAT TRIGGERS ADJUDICATION

      Most general stream adjudications in New Mexico start in one of the following ways. First, adjudication can be done СКАЧАТЬ