“just and stable titles to water”

I spent the morning in an Albuquerque court listening to a fascinating legal argument about water rights. (Update: story from the am newspaper) The real issue, involving the way central New Mexico’s largest irrigation district allocates water, remains undecided  – this morning’s ruling was issued based on procedural issues rather than the substance at hand. So I’ll have more cracks at this question in the newspaper. But the central questions in debate break down roughly into a debate between the notion of water rights as property, versus the idea of water something collectively shared. As it happens, the two poles of the debate are nicely illustrated by two bits of recent reading.

The property doctrine is exemplified by Elwood Mead’s Irrigation Institutions, one of the seminal documents in the development of water law and policy in the western United States:

[T]he vital agricultural problem of the arid West is to establish just and stable titles to water and provide for their efficient protection times of need.

The always fascinating Kay Matthews, who writes for New Mexico’s La Jicarita, offers the alternative view:

 [T]he concept of “priority date” implies that the water we use we own, which is contrary to the way the acequia communities throughout northern New Mexico have always managed their water. José Rivera, in his book Acequia Culture, Water, Land, & Community in the Southwest, quotes from an affidavit submitted by acequia commissioners in the early years of the Taos Valley adjudication to determine priority dates and ownership of water:

“the aforesaid acequias by and through their fully elected commissioners agree that they will continue to follow and be bound by their customary divisions and allocations of water and agree that they will not make calls or demands for water between and among themselves based upon priority dates.”

In accordance with the traditional practice of repartimiento, or water sharing, the acequias did not want to establish a practice whereby a priority call could shut off water to “junior” water rights holders in times of drought.

In New Mexico, this question has not been sorted out, to our detriment in this year of drought.