Unsettled Waters. Eric P. Perramond
formal legal traditions can coexist in the same space. New Mexico represents such a case where competing worldviews and customary traditions of water use endure to this day.6 Legal scholars have assessed and critiqued various state approaches to water adjudication, often focusing on the expense, the lengthiness, and the legal dilemmas. These works were aimed primarily at audiences of water law professionals.7 In addition, work by social scientists has addressed the impact of changes to water governance, water privatization, and the urbanization and commoditization of water.8 Water infrastructure, changes in water law, and federal Indian water policies in the American West have also been well documented.9 Historians too have provided rich accounts of the transformation of the American West’s rivers, the impacts of large-scale irrigation and dams, and the movement of water to cities.
Unsettled Waters fills an unexplored space in the water literature, focusing on lived experiences of New Mexicans. I critically examine how adjudications affect water users, how they create new forms of water expertise, and also how they might be useful in addressing twenty-first-century water challenges. Adjudication spans generations, is ongoing, and has no end in sight. As I hope will be clear, adjudication has consequences, intended and unintended, for all water users. Here I focus on how the state translates and transforms water from a shared, necessary communal good into a singular resource to be owned by individuals.10 From a theoretical stance, tracking adjudication allows us to examine how a state “sees” water and attempts to redefine its new water citizens as property holders. Adjudication transforms water into a private-use right through law, a system under which water becomes a potential commodity.11
COLLECTING NEW NARRATIVES OF ADJUDICATION
Unsettled Waters is based on a mixed-methods approach combining archival, field, and ethnographic research. Between 2006 and 2017, I conducted 274 interviews. Of these, 211 were of rural irrigators, with a special emphasis on those who belong to acequias or are in irrigation districts where acequias are present.12 Local expertise preexisted the rise of disciplinary water “experts” (attorneys, engineers, etc.). I did not focus on a single basin or valley. Rather, I interviewed water users from basins around the state to get a fuller picture of this statewide process (see map 1).
MAP 1. Interview locations included in Unsettled Waters. These are aggregated totals of the basin-specific interviews conducted by the author in New Mexico. Note that an additional twenty-four interviews came from smaller basins that are difficult to represent independently due to the map scale.
I also interviewed sixty-three lawyers, engineers, historians, technicians, and water managers who were working for state agencies and in private industry. I included these informants because no single body of water users can claim a monopoly on understanding water problems, much less solving them. These water “professionals” also provide balance against an overly localized and nostalgic view of water in the Southwest.13
Because this is a book that depends on the views and perspectives of living New Mexicans, informant names are pseudonyms. A few interviewees wanted to be recognized by their real names, and I honored their requests. In some instances, I modified characteristics of the person depicted or quoted to disguise the source of information. I did not want to betray the confidences of those who shared sensitive, personal, or ditch-wide perspectives. When real names were published in the public record and legal documents, I used those real names. None of those cited, mentioned, or acknowledged bear any responsibility for misinterpretations of fact, fiction, or their own words. The views and voices herein reflect the concerns, thoughts, and constructive critiques of adjudications by New Mexicans.
Each of the interviews, stories, or accounts in this book has deep historical roots. Legal and historical archives were consulted and used to enrich my accounts of past adjudications, since many of these court cases have lasted through two or more generations of New Mexicans. Archival records were vital supplements to the gaps of peoples’ memories as they recounted their court experiences.14 Adjudication relies on court decrees and data, hydrographic surveys, maps, and charts. I consulted these resources in interpreting the regional cases that appear later in this book. The maps themselves, often dating back to the days of hand-drawn ink on linen, are gorgeous objects left behind by the technicians doing the field mapping. However, numbers and maps alone cannot provide a full picture of the process or its effects on those involved. Since the state, hydrologists, and other experts already track quantitative aspects of adjudication and state knowledge, this book focuses on the qualitative and cultural impacts of an unfinished process.
Listening to those affected by the process reveals how water users have questioned and contested the state’s simplified reading of water as property. Following Freyfogle’s treatment, private property has always been a contingent relationship, not a solid and identifiable “object” of property.15 Water is owned by each state as a public good, but the use rights are private and dispensed to individuals by the state. Water rights are especially contingent since they depend on state-driven framings of water as a public good and an actual supply of water to use. Water itself in the West is thus a hybrid good: publically owned yet privately dispensed for use as a property right to use. This critical ethnography of water adjudication holds implications for those affected by the process, the state agencies and individuals doing the work, and those who have yet to be visited and adjudicated by the state.16
GOALS AND ORGANIZATION OF UNSETTLED WATERS
This is a hybrid text that uses the pragmatic lessons from New Mexican water users and experts and draws on insights from scholarship on water issues. I have intentionally written this as a kind of public political ecology, with as little jargon as possible.17 There is much to learn here from the region and its people, which can inform the scholarly water literature and water policy in the West alike. The lengthiness of the adjudication process may actually have some benefits. There is still time to reform or adapt adjudication, and lessons from New Mexico extend beyond the state line. Few western states have completed their water adjudication processes, and all are seeking solutions to water scarcity and allocation challenges.18
I have divided Unsettled Waters into thematic sections. Part 1 focuses on the work of adjudication and case studies. Chapter 1 describes the roots and purposes of adjudication and how adjudication is linked to prior appropriation, as well as how both complicate cultural understandings of water in New Mexico. The two regional cases in chapters 2 and 3 exemplify how adjudications founder in basins with multiple cultures of water. Chapter 4 then details the problematic social, political, and hydrological consequences when adjudications leave the courts to become negotiated water settlements.
Part 2 examines what adjudications and settlements produce. Chapter 5 examines how adjudication has produced new metrics of space, time, and volumes of water. The adjudication-industrial complex has also produced new forms of expertise, as I argue in chapter 6. In chapter 7, I describe how new water-user organizations and regional water-planning strategies have emerged as by-products of adjudication.
Part 3 focuses on the future of adjudication and coping with new water demands and potential lessons. Chapter 8 discusses what threatens to be the hardest work of all: adjudicating heavily populated regions along the Rio Grande. Chapter 9 addresses climate change, the water demands of other species, and how to account for water in our new era. Finally, in chapter 10, I revisit the experiences of New Mexicans and how they may inform other western states struggling to count and allocate their waters.19
PART ONE
Unsettled Waters
How Water Adjudication Works, What It Does, and What Happens When It Fails
1