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WATERSHED GROUPS

I am grateful to Neal Schaeffer for inviting me to the New Mexico Environment Department=s workshop workshop on watershed groups. I confess that, at first, I was a bit unclear about how I might contribute to it. Neal suggested that any information I might bring to bear on the topic of watershed groups, however musty and dusty it might be, would possibly be of interest. So here goes.

At the risk of overstating the case, it strikes me that the issues watershed groups face today are less about the hydrology of any one basin and far more about the anthropology of the people using the water. In other words, water is not the problem. It is the (if you will pardon the pun), the solution. Rather, the problems we face today revolve around people=s perceptions of how water should be used. I am, of course, counting on Phil King to counterbalance what I know is a fairly radical assertion.

As we begin, I would like to try to do away with a few myths. First, we may believe that our population has reached the point that action must be taken now, rather than later. Although this is probably correct, I would like to point out that New Mexico=s population in 1850 was only 61,525. According to Col. George McCall, who made an inspection of the newly-acquired Territory in 1852, only 124,760 acres of land were irrigated (Frazer 1968). By contemporary standards, this represents relatively low intensity land and water use. However, the historic record also suggests that concerns (or more accurately, grumbling) about water, both its quantity and quality, was common at this time.

I=ve done considerable thinking about possible historical analogs of watershed groups. I think that the most relevant institution is the land grant itself and the issues routinely faced by grantees may provide us with some insight or guidance in what we do here today.

From the earliest Spanish Colonial times onward, there was an explicit recognition that settlers had to have rights to an integrated set of resources--land, water, timber, and so on--in order to survive (Carlson 1990:17-19; Ebright 1987:17, 22, Leonard 1970:94). Land grants ranged from as little as 21 square miles (Pojoaque) to as much as 1561 square miles in extent (Sangre de Cristo). Consequently, Spanish land grants typically encompassed portions, sometimes large portions of hydrological basins (Carlson 1990:Appendix B, Ebright 1987:23). How, then, did individuals residing in these grants address problems with respect to water?

Lets look first at the issue of water quality. Almost from the outset there was concern about water quality as reflected in various statutes. In 1704, a royal decree established the position of special water judges, among whose responsibilities was providing clean drinking water for each town. Notably, they were to prevent water from becoming stagnant and unhealthful (Meyer 1984:66). In 1826, Santa Fe established a penalty for bathing in a spring or well reserved for domestic use (Clark 1987:16, Meyer 1984:68). Similarly, in 1868 and again in 1872, residents of Valencia and Socorro Counties were prohibited from washing clothes or anything else in acequias or placing obstructions that might cause the water to stagnate (Clark 1987:31). In 1880, the Territorial legislature established a $10.00 fine for (Clark 1987:31):

every person who shall foul the water of any stream in the Territory of New Mexico, or throw into any ditch, river or spring of flowing water any dead or pestiferous animal or other filth, dirty vessels or other impurities that might injure the general health of the inhabitants of any town or settlement of this Territory.

In the late 1890s, a revised New Mexico territorial statute made it illegal (Clark 1987:31):

for any person or persons to throw or cast the dead body or carcass of any animal or fowl, or to run or empty any sewers or other polluted or befouled substances into any river, stream, spring, lake, pond, reservoir, ditch, or any water course, or in any manner or by any means pollute or befoul the waters thereof. . .

In 1889, another statute prohibited the placement of any cemetary within 250 yards of any running stream (Clark 1987:31). I can=t imagine why!

No doubt the nineteenth century writers of such statutes thought themselves enlightened innovators looking out for the public health. However, a concern with water quality can be traced to medieval Spain where authorities were routinely concerned about potential contamination of water supplies (Glick 1970:103). Spanish prohibitions against bathing and washing clothes in ditches can be traced back to as early as 1443 (Glick 1970:54); presumably these restrictions were transferred wholesale from Europe to Spanish colonies in the New World. Similarly, specific prohibitions against actions allowing water to become stagnate also appear in Spain as early as the 1440s (Glick 1970:86). So, it may be worth recognizing that we are following in the footsteps of others in what we do here. Perhaps that will reduce our stress levels and allow us a bit more creativity.

Second, from the beginning there was concern about how water was used among the stakeholders of land grants. According to Article 19 of the 1789 Plan de Pitic, nobody was permitted to use more water than what was Aabsolutely necessary@ (Meyer 1984:36). This plan formalized prior Spanish practices and set the legal basis for all later water allocations across Spanish lands, including those in New Mexico.

While the historical record does not contain extensive records of dispute resolution among land grantees, a few examples will illustrate some points I would like to make. In the year of our Lord 1823, landowners near Taos tried to resolve on-going disputes with respect to water use among themselves. In what was a novel move for the time, a panel of alcaldes (regidores de agua) responsible for allocating water (repartimiento des aguas) concluded that Taos Pueblo had the first right to water from the Rio Lucero, while farmers at Los Estiércoles and the landowner Don Fernando had the second right to water; both were based on the historical legal principle of priority. At the same time, however, the panel concluded that it was in the interest of farmers along Arroyo Seco--and ultimately the entire community--to provide them with water to which they were not legally entitled so that their fields should not suffer (Baxter 1997:33-34, see also Meyer 1984:163). This compromise simultaneously recognized the prior rights of water users, while at the same time recognizing the needs of later arrivals to the region. To quote Baxter, Ano petitioner received all he asked, but no one was left empty handed@ (Baxter 1997:34). This was later codified into law by the assertion that water was to be allocated by Aequitable apportionment@ with priority of use having the Abetter right@. This historic incident provides us with a useful example of flexibility in problem-solving that may be worth keeping in mind.

Another factor that emerges from the historical record is that disagreements among water users, when they arose, often were resolved informally. Other scholars have noted that water shortages required not only coordination within communities, but between communities situated in the same watershed or basin (Swadesh 1974:18):

In years when several placitas were suffering from shortage of water, the communities upstream were not allowed to appropriate all the flow. The mayordomos of all the communities involved met to divide the waters so that all would share equally. Those villages located near Indian pueblos included the pueblo mayordomo in their deliberations, since the priority rights of the pueblos settled prior to colonial times was recognized by law.

We should have no illusions that the Spanish system always worked well. As Olen Leonard commented some years ago (1970:131-134):

Opposition and cooperation have been identified as the two fundamental forms of social interaction. . .Evidence of the functioning of each process is abundant in the Spanish-American area of New Mexico where an economy of scarcity has made cooperation expedient and an innate and closely woven pattern of social contact has made conflicts inevitable. . .

Nevertheless, I would like to suggest that informal agreements are worth exploring as we begin to form watershed groups.

So what, then, are the issues that watershed groups are going to have to address? To identify these issues, I want to take on, for at least a moment, the role of a farmer. If you were to ask most farmers about their need for water, you will likely get a response somewhat along the lines of AI need every damn drop of good water that I=m entitled to.@ I think this statement captures many issues that watershed groups will have to address.

The phrase AI need@ really doesn=t really tell us very much. It simply indicates that this particular farmer=s Aneed@ is contingent on such factors as crops being grown, the methods used to irrigate them, and the return or profits that are obtained from such cultivation. What is Aneeded@ could change if any or all of these factors were to change. You could just as well substitute muncipalities or industries and the issue of Aneed@ would remain open to question. In short, the Aneeds@ of water users are not self-evident.

The segment of the phrase Athat I am entitled to@ also is not terribly informative. All it indicates is that this individual wants all legally entitled water. This quantity, whatever it may be, may be in excess of what the farmer Aneeds.@ Nevertheless, it must be used since, under New Mexico law, a farmer=s failure to beneficially apply the water risks losing the legal entitlement. Again, you could substitute municipalities or industries for farmers without altering the thrust of this conclusion. In short, need and legal entitlement are not one and the same.

One of the most important initial goals of watershed groups must be to educate ourselves about the Aneeds@ of various water users. Specifically, we should focus on identifying areas where there might be some slack, or surplus, in water needs--either in terms of quantity or quality. In doing so, we must remember to separate need from legal entitlement.

Let us assume that, in fact, surpluses can be identified for some groups of water users. Whether these surpluses are large or small, watershed groups are then in a position to identify ways in which these newly-found surpluses might be reallocated to meet the unmet needs of other water users. At the same time, watershed groups must be prepared, if necessary, to develop some creative means of reallocating this surplus in ways that permit water users, for example, farmers, to retain rights to their water. I am thinking here particularly of leasing water from groups with surpluses to those with shortages--a possibility permitted under current New Mexico law.

Watershed groups must also try to anticipate the appearance of entirely new groups of water users. For example, there are now groups in New Mexico advocating restoration of Ain-stream@ flows. These groups have no legal entitlement to water under current State of New Mexico law, but have been able to apply other Federal laws so that, in effect, they must potentially be considered members of a watershed group. Again, we are not breaking new ground here; this is not a new problem. The Pueblos had to face this with the arrival of the Spanish, and both had to readjust their perceptions with the arrival of Anglos. We must adjust our perceptions.

I believe that we should explore the utility of earlier strategies that relied on informal agreements among water users. Stan Hordes will be talking about this in more detail, so I do not want to steal his thunder. How might this work? I suggest that watershed groups implement so-called Adeliberative polling@ to make decisions. Deliberative polling requires that a sample of individuals, presumably reflecting the citizenry of the watershed group, attend weekend long workshops regarding water issues. Experts or advocates on all sides of the issues also attend and are obliged to answer questions from the audience. The discussion is free-wheeling and the agenda is largely set by the audience, the members of the watershed group, and not the experts. Only after educating themselves are individuals polled to determine what appears to be appropriate courses of action. The only constraint is that the individuals in the workshop must agree to reach a consensus decision by the end of the meeting or else existing policies stay in place. The onus for change then lies with citizens and not with government. This approach to problem-solving has already been implemented, with considerable success, by the Texas Public Utilities Commission to reach consensus about utility rates (Economist 5/16-5/22 1998). Certainly we New Mexicans can do even better than any bunch of Texans! It might even give an entirely new meaning to the phrase AI=m from the government and I=m here to help you@.

Finally, virtually everybody in this room is familiar with the Rio Grande Compact and the Colorado River Compact. These compacts between states established agreements as to the amount of water that each state was entitled to. I believe that watershed groups must anticipate having to negotiate something similar to compacts between themselves and adjacent watershed user groups. We do not live in a hydrological or anthropological vacumn.

In closing, I want to return briefly to the anthropology that I believe must be a part of this workshop. There is an old anthropological concept called Foster=s Image of Limited Good. In brief, it suggests that resources (broadly defined) are limited and may be perceived to be fully allocated among all users. Should you get an additional slice of the resource, there is the perception that I will get less. And so there is great potential for conflict.

There is no doubt that watershed resources are, at some point, limited both in quantity and quality. However, like Foster, I would like to suggest that these limitations are in part real and in part perceived. I believe that the Native Americans and Spanish-Americans that came before us have provided us with strategies for extracting ourselves from the horns of this anthropological and hydrological dilemma. As they did hundreds of years ago, we have the ability to alter our perceptions and redefine the characteristics of water--its quantity, quality, and potential uses--so that we can reach agreements where otherwise we might do little else than engage in confrontations.

 

 

 

 

 

 

 

 

 

 

 

 

References Cited

Baxter, John

1997 Dividing New Mexico=s Waters, 1700-1912. University of New Mexico Press, Albuquerque.

Carlson, Alvar W.

1990 Four Centuries in New Mexico=s Rio Arriba: The Spanish-American Homeland. The John Hopkins University Press, Baltimore.

Carrol, H. Bailey and J. Villasana Haggard

1942 Three New Mexico Chronicles. The Quivira Society, Albuquerque.

Clark, Ira

1987 Water in New Mexico: A History of Its Management and Use. University of New Mexico Press, Albuquerque.

Ebright, Malcolm

1987 New Mexican Land Grants: The Legal Background. In Charles L. Briggs and John R. Van Ness (eds.) Land, Water, and Culture: New Perspectives on Hispanic Land Grants, pp. 15-66, University of New Mexico Press, Albuquerque.

Frazer, Robert W. (Ed.)

1968 New Mexico in 1850: A Military View. University of Oklahoma Press, Norman.

Glick, Thomas F.

1970 Irrigation and Society in Medieval Valencia. Harvard University Press, Cambridge.

Leonard, Olen E.

1970 The Role of the Land Grant in the Social Organization and Social Processes of a Spanish-American Village in New Mexico. Calvin Horn Publishers, Albuquerque.

Meyer, Michael C.

1984 Water in the Hispanic Southwest: A Social and Legal History, 1550-1850. University of Arizona Press, Tucson.

Swadesh, Frances Leon

1974 Los Primeros Pobladores: Hispanic Americans of the Ute Frontier. University of Notre Dame Press, Notre Dame.

Thomas, Alfred B.

1932 Forgotten Frontiers: A Study of the Spanish Indian Policy of Don Juan Bautista de Anza, Governor of New Mexico, 1777-1787. University of Oklahoma Press, Norman.

Van Ness, John

1987 Hispanic Land Grants: Ecology and Subsistence in the Uplands of Northern New Mexico and Southern Colorado. In Charles L. Briggs and John R. Van Ness (eds.) Land, Water, and Culture: New Perspectives on Hispanic Land Grants, pp. 141-216, University of New Mexico Press, Albuquerque.