acequias - utton center | the university of new mexico · 2021. 7. 13. · aspect of the acequia...

Acequias | 4-1Water Matters!

Acequias

“Thousands of familiescontinue to derive all orpart of their subsistenceor livelihood from theirranchitos, small-scalefarms and ranches. Moreimportantly, acequiasendure in large partbecause of attachment toplace, the miracles madepossible with water andthe cultural longing tocontinue ancestralpractices and pass themon to future generations.”

Paula Garcia,Executive Director,

New Mexico AcequiaAssociation

Acequias are community irrigation systems in the villages and pueblos ofNew Mexico. They have deep roots in two ancient traditions—PuebloIndian and Spanish. The Pueblos collected and shared water for

centuries before the arrival of Spanish colonists in 1598. The Spanish settlersbrought technical knowledge and institutional frameworks for governingirrigation systems, which originated in the Moors’ seven-century occupation ofSpain. Both traditions remain important to an understanding of New Mexico’sacequia heritage and the continuing relevance of these “water democracies.”Today, these traditions must meld with state law as the legislature has providedthat acequias are “political subdivisions” or local governmental entities with allthe attendant rights and responsibilities.

By Jerold Widdison for the Utton Center.

4-2 | Water Matters! Acequias

The ditches of each acequia system bringwater from a spring, river, or mountainstream to a community. The acequiasinclude the diversion dams, headgates,flumes, and other features needed totransport water for irrigating fields, gardens,croplands, and pastures. The acequias,however, are more than water-distributionfacilities. As local organizations, they areimportant for the social and economiccohesion they provide to their communities.The acequias are historic, integral parts ofthe culture and heritage of New Mexico.And, as it turns out, they play a role inaddressing current issues facing NewMexicans: responding to the demand forsupplies of fresh local food, and meeting theneed for more efficient water use asdevelopment and climate pressures increase.

HistoryIn 1846, General Stephen Watts Kearnyclaimed New Mexico as a territory of theUnited States. The Spanish and Puebloinhabitants, until then Mexican citizens, hadpracticed acequia-based irrigation in theprovince for more than two centuries. TheKearny Code decreed that the “lawsheretofore in force concerning watercourses…shall continue in force.” TheTreaty of Guadalupe Hidalgo of 1848recognized the end of the war between theUnited States and Mexico and the rights andproperty of the former Mexican citizens. AtArticle VIII, the Treaty pledged that“property of every kind” would be“inviolably respected” by the United States.

During the “Territorial” period from 1848until statehood in 1912, however, NewMexico experienced a quiet revolution in therules governing the use of its water. Thepractices the communities had worked out

were grounded in knowledge of their localareas and their traditions. These practicesobliged appropriators to monitor each other’sbehavior and to sanction those who tookmore than their share, or who failed in theirresponsibilities to the collective that heldtheir limited rights to the resource that wasthe “lifeblood of the community.” ThePueblo and Hispano acequia communitiesexerted local control over water anddeveloped customs among themselves forequitable allocation. But increasingly, theyceased to be the only appropriators ofsurface-water.

“Anglo” newcomers in the last half of the19th century challenged these arrangements,viewing the local peoples’ ecologicaladaptations to the arid land as primitive.Instead, they embodied an ethic based onAmerica’s “manifest destiny.” Thenewcomers were fueled by the belief thatthey could and should bend nature tohuman will. They promoted ambitious ideasabout what irrigation agriculture couldaccomplish in New Mexico’s Rio Grande andPecos river valleys. Furthermore, after 1879they arrived in droves by railroad so that inthe next 30 years the Territory’s populationjumped more than 170 percent.

To these entrepreneurs, local control of theTerritory’s water by small-scale irrigatorsmeant waste and inefficiency. But theacequia system was too entrenched for theterritorial legislature to replace it directly.Instead, legislators created newmechanism—water companies, irrigationdistricts, and later conservancy districts—through which control of major tracts ofland and the water rights appurtenant tothem moved from community control intoprivate hands. The legislature centralizedauthority to allocate such rights in the officeof the Territorial (now State) Engineer.Passage of the Reclamation Act by Congressin 1902, introduced a federal role in waterdevelopment and aided these trends.

As inadequate as the United States’government has been in respecting theproperty guarantees of the Treaty of

As local organizations, they are important for thesocial and economic cohesion they provide totheir communities.


Guadalupe Hidalgo for both Hispanos andPueblos, it did recognize early on theimportance of the acequias. In 1851, thelegislative assembly acknowledged thelegitimacy of customary and traditionalacequia rules in the Territory’s first waterlaws. Successive territorial assemblies bothexpanded acequia authorities and limitedtheir autonomy. By the end of the 19thcentury, acequias had been designated quasi-public corporate entities. But their realpower rested in their control of access towater. They could decide whether water was“unappropriated” and available to be put tonew use. They assigned preference todifferent uses in times of shortage. They gavethe communities access to water not as aproperty right but in exchange for members’acceptance of the rights and responsibilitiesof participating in ditch governance.

Soon enough, however, the enactment ofNew Mexico’s water code in 1907, togetherwith a series of decisions over the nextdecade in state courts, resulted in the loss ofsome of these community acequia powers.In a 1914 decision, Snow v. Abalos, whichaffirmed the acequias’ corporate powers, theNew Mexico Supreme Court said that“[w]hile a ditch through which water iscarried is owned by the constructors astenants in common, water rights acquired bythe parties are not attached to the ditch butare appurtenant to the land to be irrigated.”Water rights were thus understood to beowned solely by individual parciantes(acequia members), an understanding thatexisted until the state enacted an importantchange in the law in 1987.

UNM Emeritus Professor G. Emlen Hallsummarized the post-1914 state of affairs asfollows:

The power to decide who would haveaccess to a common source of waterwas…sent up to a state bureaucrat, theNew Mexico State Engineer.… [T]hepower to rank uses was sent down toindividual irrigators. So long as the usewas “beneficial” (and almost all useswere), then the choice [was better left to

individuals]. Finally, water rightsbecame property rights—the expressionof individual ownership—and not thecorporate political will of a communityditch association.

From an acequia perspective, then, much ofthe recent legislative history of water rightsin New Mexico chronicles a struggle toregain a measure of the community controlof water that was lost in the early years of the20th century.

Statutes Recognizing and Regulating the AcequiasApproximately a century ago, almost everyaspect of the acequia system came understate law. Most of the laws confirmed tosome extent, at least, the traditional structureand gave legal status to the acequia systemwithin Anglo-style law-making. Some lawsmay be said to have reconciled the acequiasystem with other provisions and principlesof law that might have conflicted with it.Other laws have wrestled with emergingproblems that affect or impinge upon theacequia systems, mostly having to do withwater rights.

The main statutes about the acequia systemare found in the 1907 “Acequia Act” inChapters 73, Articles 2 and 3 of the watercode. The designation of acequias as“political subdivisions of the state” restrictedtheir autonomy. The Act ensured that localpractice conformed to uniform standards ina number of matters. For example, itdefined membership criteria and rules forelection and duties of each acequia’s comisión(commission) and mayordomo (ditch master).NMSA 1978, §§ 73-2-28; 73-2-12 and 73-2-13.

From an acequia perspective, then, much of therecent legislative history of water rights in NewMexico chronicles a struggle to regain a measureof the community control of water that was lost

in the early years of the 20th century.


The Acequia Act also provides that the rightsof a member may be suspended if themember fails to provide labor or payment ofassessments to maintain the ditch. Further,the mayordomo can collect a civil penalty inmagistrate court from parciantes who fail toprovide either labor or payment. Similarly,members are prohibited from damaging theirrigation works or taking water contrary toorder of the mayordomo or commissioners.Such offenses are criminal misdemeanorsthat may be prosecuted in magistrate court,and acequias may also seek injunctive relief.

Reconciliation with Other LawsPrior Appropriation: “Prior appropriation”forms the foundation of New Mexico’s waterlaw. Acequias have long realized that theblunt application of the prior appropriationdoctrine does not make for good neighbors.Acequias typically developed sharingagreements in times of water shortage. Suchagreements have found legal backing, restingon both statutory and constitutionalauthority. Local or community rules andcustoms are protected under the law. Inaddition, if the custom of an acequiapredates the Treaty of Guadalupe Hidalgo,the custom falls within the protection of theTreaty. One of the adjudication statutesstates that adjudication decrees shall alsoinclude “such other conditions as may benecessary to define the right and its priority”so that a court may consider custom indetermining water rights. NMSA 1978, §72-9-2 and § 72-4-19. For moreinformation, please see the chapters“Adjudications” and “Basic Water LawConcepts” in this edition of Water Matters!.

Water Right Transfers: Irrigation water rights

are attached to the land on which water isused, but they may be severed from the landand transferred to another tract. The loss ofacequia water rights through market transfershas increased as development pressurethreatens to take land out of agriculturalproduction. When water is transferred outof an acequia system, the system may nolonger function. It takes water to movewater and if the amount of water to betransported is reduced sufficiently, there willnot be enough in the acequia to reach theland at the end of the ditch. NMSA 1978, §72-5-23.

To address this concern, the 2003 legislatureenacted statutes to protect acequias fromwater right transfers if such transfers willharm the acequia or its members. Underthese statutes, an acequia may incorporatelanguage into its bylaws that gives itdecision-making authority over proposedtransfers of acequia water rights. The StateEngineer cannot approve a transferapplication into or out of the acequia unlessthe he receives the acequia commission’swritten approval of the action. Thecommission must make a decision regardingthe transfer within 120 days of a request forapproval. An applicant, whose transfer hasbeen blocked, can appeal to the districtcourt. If an acequia’s bylaws do not addressproposed transfers, the written approval isnot required, and the State Engineerconsiders the application just as any othertransfer request. NMSA 1978, §72-5-24.1;§73-2-21(E) and § 73-3-4.1.

As political subdivisions of the state, acequiasalso have standing to protest water righttransfer applications, which may have anadverse effect on their functioning. Thestatute provides that an acequia can protest atransfer application by one of its parciantesbecause the transfer could affect thehydraulic viability—or the corporateintegrity—of the acequia. It also allows anacequia to protest an application elsewhere inthe state, which, if granted, mightundermine the stability of the acequiainstitution. NMSA 1978, § 72-5-5.

The statute specifically prohibits municipalcondemnation of water sources used by, waterstored for use by, or water rights owned or servedby a community ditch, irrigation district,conservancy district, or other politicalsubdivision of the state.


The statutes set for some of the bases forobjecting to a transfer. Acequias and acequiaassociations can protest a water transferapplication if they believe the transfer will bedetrimental to existing water rights, arecontrary to conservation of water, and/or willbe detrimental to the public welfare. Thusfar, however, no hearing or ruling by theState Engineer has fully determined howeffectively this statute can protect acequiawater rights, because “public welfare” isundefined in the statute. NMSA 1978, § 72-5-23; § 73-2-21(E); and § 73-3-4.1.

Water Rights and Water Banks: In 1987, thestate legislature recognized acequias’ power toacquire and own water rights. They can useand transfer the water rights, and protectthem from loss through nonuse. Inaddition, the legislature passed a 2003statute that allows acequias to create “waterbanks” to allow members to temporarilyreallocate their water to others on theacequia without having to apply for an OSEtransfer permit or put their rights at risk ofloss through non-use. To a limited degreethen, this provision shifts the concept ofparciante ownership of water rights back tothe older concept of communal ownership.NMSA 1978, § 73-2-22.1.

Condemnation: In 2009, the legislatureafforded acequias another protection of theirwater rights when it prohibitedmunicipalities from condemning acequiawater rights in satisfying their 40-year plans.The statute specifically prohibits municipalcondemnation of water sources used by,water stored for use by, or water rightsowned or served by a community ditch,irrigation district, conservancy district, orother political subdivision of the state.NMSA 1978, § 3-27-2.

Challenges and ConcernsWater Rights, Adjudications, and Transfers:Notwithstanding the statutory changes justdescribed, the two dominant concerns of theacequias at present are 1) securing their waterrights through satisfactory adjudicationsettlements and 2) maintaining control over

water rights transfers out of their systems. Asit happens, recently proposed water rightssettlements in the Aamodt and Abeyta casesutilize creative water-sharing arrangements asalternatives to the exercise of senioraboriginal water rights. These may providegood examples for the future.

Rio Nambé, Rio Pojoaque, and Rio Tesuque:The Aamodt settlement agreement for theRio Pojoaque watershed resolves the waterrights of the Pueblos of Nambé, Pojoaque,San Ildefonso, and Tesuque). The agreementprotects existing acequia rights from priorityenforcement by the Pueblos’ senior futureuses. The Pueblos agreed to limit anypriority enforcement during times ofshortage to their existing uses. The U.S.Congress passed the Aamodt LitigationSettlement Act in 2010. This legislationapproved the settlement and appropriatedfunds for a regional water system in thePojoaque Valley. The water system isdesigned to help protect and restore theaquifer, which in turn should enhancesurface flows in the streams in the Valley.Enhanced surface flows will protect acequiaaccess to water. The court is conducting theinter se phase of the Pueblos’ rights. Thesubfile adjudication of non-Pueblo surfacerights is nearly complete and the parties areworking on domestic wells. Once this phaseis completed, the court will conduct the interse phase of the non-Pueblos’ rights. Formore information, please see the chapters“Adjudications”, “American Indian WaterRights” and “Nambé, Pojoaque, SanIldefonso, and Tesuque Settlement” in thisedition of Water Matters!.

Acequias and acequia associations can protest awater transfer application if they believe thetransfer will be detrimental to existing waterrights, are contrary to conservation of water,

and/or will be detrimental to the public welfare.


Rio Taos and Rio Hondo Adjudication: TheAbeyta settlement agreement also turns onPueblo forbearance, though in a different way.Taos Pueblo and the non-Indian acequias inthe Rio Pueblo de Taos and Rio Hondo riverbasins initiated settlement discussions in1989. The 2006 settlement agreement ispredicated on extensive technical research thatprovided hydrologic information upon whichpractical water sharing is to be based. TaosPueblo will exercise its aboriginal water rightsover time, but will offset its uses as theyincrease—acre by acre—through mechanisms such asacquisition and retirement of non-Pueblo uses. Thereby,the agreement protects the 55 acequias in the Taos Valleyconsistent with long-standing customs of water-sharingamong the parties.

Middle Rio Grande: As the time draws nearer for thecourts to determine water rights in the Middle RioGrande Valley, some of the 72 acequias that weresubsumed by the Middle Rio Grande ConservancyDistrict (MRGCD) upon its creation in 1925 are seekingto learn what their rights might be, independent of theMRGCD. While a bill in the 2009 legislature that

would have limited MRGCD authority over acequiaswithin its boundaries did not pass, the question ofwhether acequias have separate legal standing has notbeen foreclosed. The attorney general’s office has saidthat the answer hinges upon satisfaction of a number ofunanswered questions; the most important of which iswhether the acequias were properly compensated afternotice and hearing when the MRGCD was formed.

Water Right Transfer Challenges: Despite the clarity of the2003 statutes, the power of acequia commissions over thewater rights they govern has been challenged. The first

Q: Where are the Acequias? How many are there?

A: They’re widespread, located in the valleys of mostNew Mexico rivers and flowing creeks. There areabout 700 of them.

Good information about acequias is scarce. NMSU pro-fessor Neal Ackerly gathered up facts and figures over a pe-riod of years and found at least a bit of data on 1,927acequia systems that once operated or that were still oper-ating. In his 1996 summary report, Professor Ackerlystated that more acequias existed in past years, but by about1987 the number in existence had dwindled to 721.

Fluctuations in the number of acequias reflect the settle-ment history of the state, including current trends of ur-banization and reduced small-farm activity and farmpopulation. The number of acequia systems increasedslowly during the 1700s and early 1800s. Then it appearsthat the numbers increased rapidly in the late 1800s andearly 1900s, followed by a slow decline throughout the lasthalf of the twentieth century.

Government-sponsored irrigation projects also reduced thenumbers of acequias. The MRGCD and the EBID, forexample, absorbed and replaced the ditches of numerousacequia systems, also ending those systems as organizations.

Other acequias vanished as rural villages were abandonedand as traditional ways of life diminished.

Acequias have always been most numerous along the upperRio Grande and its many small tributaries. Ackerly listed172 systems in Rio Arriba County and 125 in TaosCounty. But acequias are also found in 14 other riverbasins, utilizing 130 streams and a number of springs.

Most acequia systems were established by early-day His-panic settlers, but some, such as those in the Mimbres Val-ley, involved quite a few Anglo settlers early in the 1900s.In such places, just as in northern New Mexico, the acequiasystem was found to be a useful agricultural and commu-nity-building concept.

The Court of Appeals held that because acequiacommissioners are intimately familiar with thecomplex needs of their acequia and its members,the deferential standard of review provided in thestatute helps assure that they retain the power todecide whether changes in an acequia system willharm the operation of the acequia and those who

might depend on it for their livelihood.


New Mexico Acequias

By Jerold Widdison for the Utton Center.

test of the statute was presented in PenaBlanca Partnership v. San Jose de HernandezCommunity Ditch, which asked whether adistrict court’s deferential standard of reviewof an acequia commission’s decision violatedthe New Mexico constitution. The Court ofAppeals held that because acequiacommissioners are intimately familiar with

the complex needs of their acequia and itsmembers, the deferential standard of reviewprovided in the statute helps assure that theyretain the power to decide whether changesin an acequia system will harm the operationof the acequia and those who might dependon it for their livelihood.


The case involved appeals to the districtcourt from decisions of two differentacequias. In one case, the commissioners ofthe San José de Hernandez CommunityDitch denied an application from PeñaBlanca Partnership to transfer rights to asubdivision that were once appurtenant toagricultural land served by the acequia. Inthe other case, commissioners of the Acequiadel Gavilán denied Richard Cook’sapplication to transfer water rights onceappurtenant to 10 acres served by theacequia, to a pond in order to offsetevaporative losses of the pond.

The Court of Appeals determined that ineach case, the acequia commissioners’decisions did not violate the Constitution’sarticle XVI, § 5, which provides a de novoappeal to the district court from a decisionon matters of water rights made by anadministrative body “unless otherwiseprovided by law,” nor violated the equalprotection clause of article II, § 18. On thefirst issue, the court reasoned that thelegislature provided a procedure forappealing commissioners’ decisions todistrict court, and therefore, water rightsowners were not entitled a de novo appeal.

The second challenge asserted that thestandard of review for the district court, asset out in the statute—whether “thecommissioners acted fraudulently, arbitrarilyor capriciously” in denying a transfer—violates equal protection principles becauseother determinations concerning water rightsare afforded a de novo standard of review.That argument also failed when the courtapplied a rational basis review of the statuteand determined that there is no separateconstitutional right to a particular standardof review. Again, because acequiacommissioners are intimately familiar with

the complex needs of their acequia and itsmembers, the deferential standard of reviewprovided in the statute helps assure that theyretain the power to decide whether changesin the system will harm their acequia system.

Other Acequia ConcernsTort/Contract Immunity: Acequias and theirofficers enjoy tort immunity. As politicalsubdivisions of the State, acequias fall withinthe protection of New Mexico statutes,which provide immunity for governmentalentities. Moreover, the Tort Claims Actexpressly provides tort immunity for acequiamembers acting within the course of theirduties. In 2006, the legislature amended thelaw to protect officers, volunteers, andemployees of community ditches or acequiasfrom tort claims while acting within thescope of their duties. These individuals mayrequest insurance and self-insurance coveragefrom the Risk Management Division of theNew Mexico General Services Department.NMSA 1978, § 37-1-23; § 41-4-13.

Easements: Another matter has to do witheasements on lands over which ditches lie.If an irrigation ditch has been in use for fiveyears, it is “conclusively presumed” that thelandowner has granted an easement for it. In 2005, the legislature amended to providefor prosecution and penalties for interferencewith such an easement. It is unlawful tointerfere with an easement or to preventaccess to the ditch, and interference ispunishable as a misdemeanor. In addition,the mayordomo or acequia commissionersmay file a civil complaint. NMSA 1978, §73-2-5.

Acequia Commission: In 1987, the Governorcreated the New Mexico AcequiaCommission. This Commission advises theGovernor and the New Mexico InterstateStream Commission (ISC), as well as theU.S. Army Corps of Engineers. TheCommission considers issues involvingrehabilitation of acequia infrastructure andstate and federal funding and acts as a liaisonbetween local acequia organizations and stateand federal governments. In 1993, the

If an irrigation ditch has been in use for fiveyears, it is “conclusively presumed” that thelandowner has granted an easement for it.


legislature established the AcequiaCommission. It is attached to theDepartment of Finance and Administration.NMSA 1978, § 73-2-65.

Liaison at the Office of the State Engineer:Within the Office of the State Engineer(OSE) there is an Acequia Liaison whoassists acequias and parciantes with theirwater rights in adjudications. In recentyears, the Liaison has worked in the RioGallinas and Rio Chama basins, and theMimbres basin. In the Mimbres basin, he isworking with a community counterpartwhose focus is the broader water community,including municipalities and other entities.The Liaison has also worked extensively inthe Taos and Santa Cruz adjudications withlesser involvement in the Jemez, Aamodt, andRed River adjudications. The AcequiaLiaison may assist acequias with waterallocation issues and governance questions inaddition to adjudication issues. The Liaisonworks with the ISC, the Water ResourcesAllocation Program, and the New MexicoAcequia Commission, as well as with theOSE’s Native American Liaison on issuesbetween acequias and Pueblos.

Acequia [Adjudication] Fund: In 1998, thelegislature created the Acequia andCommunity Ditch Fund, which providesfunding to community ditches and acequiasfor legal representation and expert assistancein adjudications. NMSA 1978, art. 72-2A.

Acequia Rehabilitation Programs: Acequiasmay be provided with operational and main-tenance assistance by certain state and federalfunding programs. Starting in 1961, the U.S.Department of Agriculture has providedtechnical and financial assistance to acequiasfor rehabilitation projects. As administra-tions change over the years, funding cutshave ensued, leaving the OSE as the primarysource grants. Technical assistance involvesplanning, design, engineering and supervi-sion of construction projects.

The Acequia Project Fund was created in2004, but endowed for the first time in 2007with a $100,000 private donation from theHealy Foundation. The Foundation donated

an additional $100,000 in 2009. Grantsfrom this fund provide financial assistancefor acequia projects. Policies for determiningfunding were developed in 2009, including aprovision that grants cannot exceed $20,000and projects must be completed in a two-year time frame. NMSA 1978, § 72-4A-9.1.

Irrigation Works Construction Fund Loans:The costs that an acequia needs to putforward for a construction or rehabilitationproject may be covered by a loan from theISC. The loans are funded from theIrrigation Works Construction Fund(IWCF). This funding is provided by thelegislature on an annual basis. NMSA 1978,§ 72-14-23.

U.S. Army Corps of Engineers Program: Amajor source of funding for acequia projectsis the federal Water Resources DevelopmentAct of 1986. Because of the acequias’cultural and historic values, the U.S.Congress authorized the Secretary of theArmy to ensure funding for diversionstructures at an estimated $40 million.These federal monies are matched at the stateand local levels; the IWCF is a source of suchnon-federal cost shares.

ConclusionAcequia members have historically fought toprotect their rights. The voices of manyacequia members have long been heard inthe halls of the legislature. The New MexicoAcequia Association (NMAA) was formed inthe 1990s. It is governed by the Congreso delas Acequias, a federation of regionalassociations of acequias. According to theNMAA, over 500 acequias are represented bythe regional delegations. The NMAA hasactively mobilized to define and press forpassage of much of the legislation thatprotects the acequias.

Within the Office of the State Engineer there is an Acequia Liaison who assists acequias and parciantes with their water

rights in adjudications.


Treaties, Constitutions, Codes, and Statutes

Treaty of Guadalupe Hidalgo, art. III, U.S.-Mex., Feb. 2, 1848, 9 Stat. 922.

Water Resources Development Act of 1986,Pub. L. 99–662.

N.M. Constitution, art. XVI, § 1, Existing Water RightsConfirmed.art. XVI, § 5, Appeals in Matters Relatedto Water Rights.art. II, § 18, Due Process; EqualProtection.

Kearny Code of Laws of Sept. 22, 1846,http://avalon.law.yale.edu/19th_century/kearney.asp

NMSA 1978,

§ 3-27-2 (2009), Potable; Methods ofAcquisition; Condemnation ConveyancesAuthorized; Land for Appurtenances;Public and Private Use; Compensation.

§ 37-1-23 (1976), Contractual Liability;Statute of Limitations.

§ 41-4-13 (2006), Exclusions fromWaiver of Immunity; CommunityDitches or Acequias; Sanitary Projects ActAss’ns.

§ 72-4-19 (1907), Adjudication ofRights; Decree Filed with State Engineer;Contents of Decree.

§ 72-4A-9.1 (2004), Acequia Project Fund.

§ 72-5-5 (1985), Objections toApplications; Publication of Notice;Filing of Protests; Definition of Standing.

§ 72-5-23 (1985), Water Appurtenant toLand; Change of Place of Use (Transfersand requiring no harm to existing waterrights, public welfare and not contrary towater conservation).

§ 72-5-24.1 (2003), Acequias andCommunity Ditches; Changes in Point ofDiversion or Place or Purpose of Use. (ReTransfers)

§ 72-9-2 (1907), Local or CommunityRules and Customs Unaffected; Authorityof State Engineer.

§ 72-14-23 (1959), N.M. IrrigationWorks Construction Fund Created;Limitation of Liability; Reparation ofDamages; Authority of Commission toReceive Contributions.

§§ 73-2-1 through 73-2A-3, Ditches orAcequias; Acequia and Community DitchFund.

§ 73-2-5 (1895), Ditch Over Land ofAnother; Easement; Right of ServientOwner; Penalty.

§ 73-2-12 (1987), [Acequia/Ditch]Officers, Election, Bonds and Vacanciesin Certain Counties.

§ 73-2-13 (1919), Vacancies in Office of[Acequia/Ditch] Commissioner.

Acequia issues should not be framed aspreserving tradition versus meeting moderndemands. Acequias benefit and play animportant role in current developments oflocal foodsheds and, with the resurgence inpopularity of organic food, acequias provideeconomic opportunity for members of ruralcommunities. Further, in an arid state whereevery drop of water is studied and tracked, ithas been shown that acequias providerecharge to our groundwater systems as waterseeps into the earth beneath the flow.Following intensive studies of acequias in

northern New Mexico, Sam Fernald whenAssistant Professor in WatershedManagement at New Mexico StateUniversity concluded: “Acequia hydrologyplays an important role in contributing to anecologically healthy, agriculturallyproductive, and community-sustainingfloodplain agroecosystem.”

By Brigette Buynak, Esq. and JeroldWiddison (2007)

Latest Update by Darcy Bushnell (2013)

Sources and Contributors


§ 73-2-21(E) (2003), Commissioners’Powers and Duties; Mayordomo’s Duties.(Commissioners’ responsibilities retransfers).

§ 73-2-22.1 (1987), Acequia andCommunity Ditch Ass’ns.; AdditionalPowers; Water Rights Acquisition; Non-forfeiture (Objections to transfers).

§ 73-2-28 (2001), Acequia andCommunity Ditch Ass’ns.

§ 73-2-55.1 (2003), Water Banking;Acequias and Community Ditches.

§ 73-2-65 (1993), Acequia Commission;Created; Membership; Terms.

§ 73-2A, Acequia and Community DitchFund Act.

§73-3-4.1 (2003), Commissioners;Additional Duties; Approval of Changesin Place or Purpose of Use of Water;Appeals.

§ 73-14-39 (1927), ConservancyDistricts; General Powers.

Cases

State of New Mexico, ex rel. State Engineer v.Aamodt, Settlement Documents, http://uttoncenter.unm.edu/ombudsman/npt.php

State of New Mexico, ex rel. State Engineer v.Abeyta, Settlement Documents, http://uttoncenter. unm.edu/ombudsman/taos-adjudication. php

Pena Blanca Partnership v. San Jose deHernandez Community, 2009-NMCA-016,145 N.M. 555, 202 P.3d 814.

Snow v. Abalos, 1914-NMSC-022, 18 N.M.681, 140 P. 1044.

Other

JOHN O. BAXTER, DIVIDING NEW MEXICO’SWATERS, 1700–1912 (1997).

John R. Brown, Governing New Mexico’s Waters(presented at the biennial conference of theInternational Association for the Study of theCommons, Oaxaca, Mexico, Aug. 2004).

John R. Brown and José A. Rivera, Acequiasde Común: The Tension between CollectiveAction and Private Property Rights (presentedat the biennial conference of theInternational Association for the Study ofthe Commons, Bloomington, IN, June2000).

David Benavides, Esq., The Law of Acequias:Organization, Water Rights and NewDevelopments, (presented at CLEInternational course, Aug. 16–17, 2004).

Alexander (Sam) G. Fernald, et al.,Hydrologic, Riparian, and AgroecosystemFunctions of Traditional Acequia IrrigationSystems, J. of Sustainable Agriculture, 2007.

Paula Garcia, Acequias: Cultural Legacy andGrassroots Movement, Santa Fe NewMexican, Oct. 13, 2007.

G. Emlen Hall, Tularosa and the Dismantlingof New Mexico Community Ditches, N.M.HISTORICAL REVIEW, 2000.

N.M. Attorney General Opinion, Aug. 25, 2009.

N.M. Acequia Association,http://www.lasacequias.org/

ACEQUIA GOVERNANCE HANDBOOK(2006).

Presentation to Water and NaturalResources Legislative Interim Committee(Nov. 8, 2012), http://www.nmlegis.gov/lcs/handouts/WNR%20110812%202.%20NM%20Aceqia%20Association%20presentation.pdf

N.M. Acequia Commission, A JointMemorial Requesting the New Mexico AcequiaCommission to Study Methods of MutualCooperation Between the Middle Rio GrandeConservancy District and Acequia Associationsin the South Valley to Protect Acequias in theMiddle Rio Grande Valley, House JointMemorial 19, (presented to the Water andNatural Resources Legislative InterimCommittee Nov. 8, 2012).


Laura Paskus, Death by a Thousand Cuts,Santa Fe Reporter, June 27, 2012.

Pena Blanca P’ship v. San Jose de HernandezComm. Ditch, 2009-NMCA016, 145 N.M.555, 202 P.3d 814.

JOSÉ A. RIVERA, ACEQUIA CULTURE: WATER,LAND, AND COMMUNITY IN THE SOUTHWEST(1998) (citing David F. Arguello, et al., TheRole of the Acequias and Legal Issues FacingThem: A Roundtable, Annual Conf. ofWestern Social Sciences Ass’n., Apr. 23–26,1997).

SYLVIA RODRÍGUEZ, ACEQUIA: WATER-SHARING, SANCTITY, AND PLACE (2006).

Contributors

David Benavides, Esq., Land and WaterRights Project Director, New Mexico LegalAid

Hilario Rubio, former Acequias Liaison,N.M. Office of the State Engineer

Ricard Trujillo, Acequias Liaison, N.M.Office of the State Engineer