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Thoughts and Hallucinations

The previous water blog from the home page

I’ve been working on water for a couple of years now. I remember how, when I first engaged waterworld as a new assistant prof in Honolulu back in the 70s, I learned scuba so I could dive in. Scuba doesn’t work in the desert, though when I first drove north towards the mountains from Albuquerque airport, the mesas did look like land reefs and the birds like flying reef fish. Later I read somewhere that a Spanish conquistador wrote letters home saying the same thing.

It doesn’t take maybe five or ten minutes in New Mexico to notice that people talk about water a lot. This observation is what one irreverent daughter of a colleague called “Du-uh social science.” In a state where there isn’t much, water surfaces as a topic in most domains of life and has for centuries. It’s a fickle thing, a miserly annual average but mood swings between floods and droughts. It is wrapped in dissonant historical layers of interstate and international politics, and since the railroad arrived in 1880, an increasing population acts like there’s an inexhaustible supply for their personal use, from five gallon flushes all the way up to agro-industrial profit.

The problem is, there isn’t enough to go around any more. The talking is turning into a wave of publications, meetings and scared and angry people.

So, the last couple of years, I’m trying to find a liquid groove in which I can do something interesting and useful. “Liquid groove” sounds like the path Moses created when he parted the Red Sea to let his people go, and it might well require that level of miracle to get New Mexico and its diminishing water supply back in sync. So I thought maybe my web page would be a quiet place to try some ideas out.

It’s like Flannery O’Connor said, “I write because I don't know what I think until I read what I say.”

Now, this text will go on and on for a bit, a blog-ote, if you know that Spanish suffix. And I’ll write others as time goes on that build on this one. I’m trying to develop an outline here for something bigger. It’s time. I’ve drifted through a large number of words and events. What's the heart of the matter?

The heart of the matter is a question: How do you share water when there isn’t enough of it to go around?

The old way is something that doesn’t work anymore. Western U.S. water policy was, and is, based on “prior appropriation” and “beneficial use.” Unlike the Eastern way, called “riparian,” rights to water and rights to land are separate. Roughly stated, the person who uses a particular source and amount of water first has senior rights, as long as they continue to use it for some beneficial purpose. What’s beneficial? Good question that we’ll come back to in a minute.

Prior appropriation, it is said--I haven’t researched it carefully yet--developed in the gold fields of the California gold rush. Whoever made a claim first and continued to work it had senior rights to that claim. Water was in the mix as well. A miner who used water for a sluice box had senior rights to the water he needed. The Homestead Act of 1862 rested on a similar principle--the famous land rush. Whoever claimed the land and developed farming first owned the land.

So what kind of water sharing system is this? (“Water sharing” sounds like the day care version of water management, but it is the term of art). It’s simple. It means that when there isn’t enough water to go around, those with the most senior rights get their water first, then the second most senior, and so on down the line until the water runs out. In other words, there is no sharing, in the sense that, when there isn’t enough water, everyone still gets some.

The first problem. Who are the seniors in New Mexico? Answer: The Spanish conquest recognized indigenous people's seniority and the American conquest recognized Spanish/Mexican and indigenous as senior. The recognizers also did some fraud and theft, but that's another story. The Pueblo and Navajo/Apache are the two most populous indigenous peoples in New Mexico. Next in line come the Spanish, who became Mexican after their 1822 revolution, who were resident in the state when the American occupation started in 1848. Third, by and large, come the early Anglo-American ranchers, families dating back to Territorial days.

The senior rights, in other words, tend to be rural and agricultural--agriculture consumes about 80% of the state water budget--whereas nowadays about 80% of the state population is classified as urban by the U.S. census. So water sharing means the cattle get their alfalfa and the hell with Albuquerque? That's not water sharing.

The second problem: The idea of water rights as something a person owns and can independently buy and sell originated with American Territorial law. Prior to that, indigenous and Spanish/Mexican systems rested on community ownership and management of rights. Conflict occurred, of course, but it tended to be resolved at the community level with a goal of restoring harmony rather than determining individual ownership.

Under the new American system it had to be determined exactly what rights over how much water for what use that each individual had, a process known as “adjudication.” (The legal term has a general meaning but in New Mexico it strongly connotes use of the courts to determine water rights). And those rights were personal property. A person could buy and sell them.

No one was quite sure how much rights the indigenous or the Nuevomexicano communities had, never mind that the American concept of individual ownership didn’t make any sense to them at the time of the U.S. takeover, nor did the new American approach take into account how water was much more than individual property. It was also a focal point, a thematic center, that spanned most community beliefs and practices. Water was, still is for many, a "don divino," a gift of god.

With statehood, the new Office of the State Engineer set out to determine what those traditional and newer rights were, though it wasn’t in any hurry. Adjudication of water rights was barely started, never mind being completed. In 2010 a speaker from the OSE claimed that it was usually said that only 20% of rights had been adjudicated. He disagreed, saying it was more like 40 to 50%.

At present such cases have turned into a legal nightmare. The story is far too complicated to untangle here, but, as a quick example, one case, just completed, holds the record in U.S. federal court history, about 45 years to settle the rights in a Rio Grande tributary basin adjudication known as “Aamodt,” rhymes with “dammit.” Adjudication cases have turned out to be extremely expensive and long-lasting. The future case from hell that causes fear and loathing in the hearts of water professionals is still in the wings, the adjudication of the entire Middle Rio Grande, the thought of which causes everyone to break out in a rash at the thought of how long it's going to take and how much it's going to cost.

So, water-sharing under prior appropriation means that, when there's not enough, only some will get water, most of them will be rural and agricultural, and in many cases no one is really sure of how much they should get or how senior their rights are.

Here's a third problem, the concept of “beneficial use.” Are all uses of water equally beneficial? And to whom? As near as I can tell so far, pretty much any kind of use is as good as any other, as long as the water is being used for something. There are stories of people wasting water in an apparently useful way so that they can keep their rights, because if the water is not used for a period of time the rights are forfeit. This is where social differences surface when there isn't enough to go around. Should Pueblo senior rights include a resort? Should developments be permitted where aquifers already show a "cone of depression?" Should rivers and the life in them also have water rights? Should acequia systems be evaluated by economy, ecology, or tradition? Should a farmer use water to produce a crop that has much less value than the water it requires? Should a domestic well be used to nourish a lush garden? How about a water hungry industry like fracking? Should desalination be considered in spite of the waste it produces and the energy it consumes? On and on goes the list of conflict along social lines that not enough water produces. Like Mark Twain wrote, whiskey is for drinking, water--especially if there's not enough of it--is for fighting.

And here’s a fourth problem: John Wesley Powell sent a report to Congress in 1890 that said, the Southwest is dry, so you better organize units of governance around river basins so populations can work in the context of the limited water resources that they share. Congress ignored his map and loaded the West with state boundaries that made no ecological sense.

So, from the early 20th century on, the chopped up environment had to create interstate and international compacts to guarantee sharing of water from the same river basin across the political borders that cross cut them. The Rio Grande, for example starts in Colorado, runs the length of New Mexico, turns east into Texas and then forms the boundary between the U.S. and Mexico. Who gets how much water in these sharing schemes, especially when the “compacts” and “projects” were negotiated during wet years?

The traditional state system of water sharing is broken, a primary indicator being the interminable and expensive court cases that litter the land. It is not a good system for water sharing when there is not enough water. First appropriation mean that many get no water at all. The vacuous concept of beneficial use means no discrimination among its uses. It is not clear how much rights many entities and/or persons actually have since so much has not been adjudicated. And even if there’s not enough to share within the state, New Mexico still has to provide water to other states and to Mexico in amounts not set in times of drought.

That's it for today. The next blog about water will deal with ideas of what to do about this. There are several non-mutually exclusive ways to think about it that will be topics for the future. I'm giving a brief presentation, along with a lot of others by people who know much more about water governance than I do, at a workshop in a couple of weeks, http://allaboutwatersheds.org/new-mexico-water-dialogue/events/events-inbox/workshop-transformational-solutions-for-water-in-the-west. I'll write something about that next time as a way to get into proposed solutions. For the moment, I'll leave anyone who actually read this whole thing with the problem, or at least the way I see it so far.
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