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"Indigenous Feminism Flows Through the Fight for Water Rights on the Rio Grande"

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"Indigenous Feminism Flows Through the Fight for Water Rights on the Rio Grande"

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This article discusses the key role that Pueblo women play in the activism to support and conserve the Rio Grande and other natural resources.

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Kalen Goodluck/High Country News

An intergenerational group of Pueblo women are leading the way on water policy along the Middle Rio Grande Valley.

On a late November morning, Julia Bernal walked a stretch of riverbank along the Rio Grande in Sandoval County, New Mexico, between Santa Ana and Sandia Pueblo. Bernal pointed out the area between the cottonwood trees and the edge of the Rio Grande, a 30-foot stretch of dry earth covered in an ocean of tiny pebbles intermixed with periodic sandbars, tamarisk and willow shrubs.

Pictured above: The Southside Water Reclamation Plant, which treats wastewater sewage from Albuquerque homes before releasing it into the river, sits on the southern edge of the city, just five miles from the boundary of the Pueblo of Isleta.

"It never used to look like this," Bernal said. "The reason the cottonwoods look the way that they do is because of the Cochiti Dam - that hyper-channelization of the river did cause this riparian forest to just kind of (disappear) along with it."

Bernal grew up in the 1990s watching the river shrink every year, even as Sandia Pueblo, where she is enrolled, and other Rio Grande pueblos were left out of the state's surface-water management process. Knowing that her community's water, central to its culture, was in danger, Bernal resolved to work in the water sector after she graduated college in 2016, perhaps in the Bureau of Indian Affairs or the U.S. Fish and Wildlife Service. But everything changed later that year.

Bernal, along with the rest of the world, watched as tribal communities came together at Standing Rock to fight the Dakota Access Pipeline. The event galvanized her, forcing her to confront the fact that it was impossible to work on behalf of the Rio and the pueblos without centering the Indigenous environmental justice perspective. The time had come - for Standing Rock, for the pueblos, for all Indigenous communities - to enforce their sovereign right to lead on water policy.

"It was a fight to protect water, but also protect culture, respect treaties," Bernal said. "It taught me a lot about how any sort of planning initiative is going to include some sort of justice component if you're dealing with Indigenous peoples."

Later that year, Bernal helped found the Pueblo Action Alliance, which she directs. The organization, which prioritizes youth involvement, aims to advocate for the pueblos' water rights and explain their complex history. Bernal is determined, she said, to "ensure that not just tribal nations but communities also have participation in decision-making processes."

Bernal is not alone - far from it. She is part of an intergenerational group of Pueblo women working, advocating and organizing on behalf of the 19 pueblo nations and their right to be policy leaders when it comes to the future of the Rio Grande. Bernal and her contemporaries fight on several fronts at once: Convincing state and local governments to recognize their legal water rights; getting those rights quantified by the courts; and navigating the reality that pueblo nations have to depend on federal officials to actually enforce the existing water-quality regulations. The state has put the pueblos in a tenuous position regarding water rights, particularly given the two-decade-long drought, and these community leaders are done waiting for the state and federal governments to act.

Indigenous water rights are intensely, often frustratingly, shaped by centuries-old colonial law. The disbursement of water within the United States is determined by a process that prioritizes what are known as senior water rights. According to Indian law and civil litigation attorney Richard Hughes, most federally recognized tribes generally have the most senior water rights across the country, secured by a 1908 Supreme Court Decision known as Winters v. United States. The legal precedent for pueblo water rights, however, can also stem from the Mechem Doctrine, from New Mexico v. Aamodt, which holds that the pueblos' aboriginal water rights were solidified by the Treaty of Guadalupe Hidalgo, signed by the U.S. and Mexico in 1848. Despite their senior status, tribes often wait decades - some for over a century - to have their rights quantified through litigation or settlement with New Mexico and subsequent congressional approval. Whether through Winters or the Mechem Doctrine, this process is particularly cumbersome for the pueblo nations, Hughes says, which are often required to have a documented "precedent for what the tribe would be entitled to were the case to be fully litigated."

Thanks to New Mexico's attitude, the opportunity for such litigation abounds. In 2020, the pueblos of Santa Ana, Jemez and Zia withstood an attempt by the state to diminish their aboriginal water rights along the Jemez River. The case was the latest entry in a decades-long campaign of antagonism by New Mexico - the very environment that taught Judge Verna Teller how to leverage her people's sovereignty.

Teller, chief justice of Isleta Pueblo, grew up just south of Bernal. And like Bernal, Teller witnessed disconcerting changes in the river. Like other Isleta community members, she was unnerved by the discolored foam in the Rio. After traditional elders had to stop using water in ceremonies in the mid-1980s, they asked Teller to find out what was wrong.

"I just felt obligated to help, because I knew it wasn't just for them," said Teller. "It was for the whole community, and for everybody in the future - our children, our babies that weren't born yet."

Before long, elders realized Teller needed to be in a position of authority to hold local and state agencies accountable. Teller was only 35 when traditional elders asked her to run for governor of Isleta Pueblo, and she faced an uphill battle, given the existing council's gender-based discrimination. But once in office, she was able to work with various agencies, legal experts and hydrologists to establish a water-quality standard for Isleta. It took a decade of legal tussling with the city of Albuquerque, but under Teller's guidance, in 1998, Isleta became the first tribal nation to establish water-quality standards under the Clean Water Act.

"It was all spirit," she said. "I still really get emotional when I think about it, because it was so important to us. As mortals, as humans, we don't realize sometimes how powerful spirit is. They come to your aid when you need it."

Over the years, however, alleged violations by the city have rarely been punished by federal agencies. And as Teller pushes for Isleta's government to use its regulations to hold New Mexico accountable, others, like Phoebe Suina, also work to ensure that the pueblos keep fighting for their rights to the river and for the Rio's water quality.

Suina, who hails from the Pueblos of San Felipe and Cochiti, is a hydrologist by training and the owner of High Water Mark, an Indigenous-women-led environmental consulting company that focuses on water-resources engineering. "We really need to address the water quality along with the water quantity in this very rigid, restricted framework," Suina said. Like Teller and Bernal, Suina is still grappling with the overarching question that has defined every facet of this struggle: Is adjudication - going to court to obtain a more permanent answer on water rights and quantification - the best way to strengthen Indigenous water rights? And if not, what long-term strategy should the Pueblo nations pursue to achieve justice, given the flexibility that climate change is going to demand?

"Even today, without the whole complexity of the prior paramount water users and water-right holders - even without all that, just with (the 1938 Rio Grande Compact) - (New Mexico) cannot live up to that agreement because of the drought," Suina said, citing the ongoing litigation between Texas and New Mexico over water. "How do you have an agreement that you cannot live up to?"

For now, the question facing all sides involved in this complex, constantly shifting situation is painfully simple. Teller put it best: "Do we want the courts to settle it? Or do we want to settle it by working together?"

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Indigenous feminism flows through the fight for water rights on the Rio Grande

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Kalen Goodluck/High Country News An intergenerational group of Pueblo women are leading the way on water policy along the Middle Rio Grande Valley. On a late November morning, Julia Bernal walked a stretch of riverbank along the Rio Grande in Sandoval County, New Mexico, between Santa Ana and Sandia Pueblo.

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This article explores how the American legal system discounts Pueblo communities' rights to water despite their existence as the original human communities in the American Southwest.

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Abstract

Pueblo communities have lived in what is now the American southwest since time immemorial. They have practiced irrigated agriculture since well before the Spanish arrived in 1540 (Cohen's Handbook 2012, §4.07(c); New Mexico v Abbot 2010). In the American West, water is allocated on a first-in-time basis-called prior appropriation. On its face, applying the rules of prior appropriation would appear to mean the Pueblos have paramount water rights to all other users. Yet, despite their long history of water use, Pueblo communities' right to water remains in question. The story of why this is so illustrates some of the problems that occur when colonising powers treat Indigenous groups as if they have no laws and as if there is no differentiation among Indigenous groups. It also demonstrates how a focus on procedural details can provide the appearance of fairness while concealing substantive injustice (Hendry and Tatum 2016). This chapter will propose a new way of looking at the particular problem of the Pueblos of the American southwest and their rights to water.

I would like to thank Holly Doremus and Robert Glennon for their comments on an earlier and longer versions of this chapter. I would also like to express my appreciation to the editors of this volume for their welcomed and insightful review and commentary. Finally, I would like to express my deep appreciation for the Pueblo governors, officials, citizens, and attorneys who continue to advance their substantive rights as sovereign nations.

Notes

1. 1.

Ohkay Owingeh is the original name for the Pueblo formerly known as San Juan. A discussion of the treatment of Pueblo people by the Catholic Church and Spanish settlers is beyond the scope of this chapter. For an excellent study of the Pueblo Revolt, see Wilcox ( 2009).

2. 2.

Simply put, the Doctrine of Discovery is grounded in the idea that a European king or queen could give permission to an explorer to possess and conquer the lands of 'savages' (Williams 2012).

3. 3.

An additional wrinkle to Pueblo water rights was that the patents did not address land titles within the Pueblos held by non-Indians. For example, by 1913, 80 to 90 per cent of Pueblo lands close to urban centres had passed to non-Indians (DuMars et al. 1984, p. 56).

4. 4.

See also, United States v Canderlaria ( 1926) 271 U.S. 432 (holding with specific reference to the 1851 application of the 1834 Indian Trade and Intercourse Act, that the Pueblos were indeed 'Indians' and that they were subject to exercise of Congressional guardianship).

5. 5.

Unfortunately, there is insufficient space in this volume to fully describe the court's reasoning in this case. For an excellent summary of U.S. v Abousleman and the other cases in the Pueblo water law litigation see, Hughes ( 2017) pp. 236-40.

6. 6.

Treaty of Guadalupe Hidalgo ( 1848). It is important to note that, 'Mexican' in this context is a term inclusive of citizens of the Pueblos.

Author information

Affiliations

University of Arizona, Tucson, AZ, USA

Darren Modzelewski

About this chapter

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Pueblo communities have lived in what is now the American southwest since time immemorial. They have practiced irrigated agriculture since well before the Spanish arrived in 1540 (Cohen's Handbook 2012, §4.07(c); New Mexico v Abbot 2010). In the American West, water is allocated on a first-in-time basis-called prior appropriation.

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"Does the fate of the silvery minnow foretell the Rio Grande's future?"

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"Does the fate of the silvery minnow foretell the Rio Grande's future?"

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This article analyzes the plight of the silvery minnow, which is one of the animal species that is endangered by river drying of the Rio Grande.

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Does the fate of the silvery minnow foretell the Rio Grande’s future?

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Biologists go to great lengths to keep the fish alive, but it’s nearly extinct in the wild.

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"The Surprising Gift From New Mexico's Pueblos That Might Save the Rio Grande"

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"The Surprising Gift From New Mexico's Pueblos That Might Save the Rio Grande"

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This article discusses the choice of the Sandia Pueblo to relinquish some of its right to Rio Grande water as a donation to the river in order to protect the animal and plant species that rely on the river.

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by Laura Paskus

Churning along a 2,000-mile route from Colorado to the southern tip of Texas, the Rio Grande is a critical water source for millions of people, flora, and fauna in the Southwest. But drought and diversions have made it difficult for The Big River to live up to its name; in some stretches, like in the Middle Rio Grande near Albuquerque, New Mexico, the water has stopped flowing almost every summer since 1996, causing fish to suffocate, birds to relocate, and invasive trees to take over.

Part of the river's problem is that water is continuously siphoned off by canals and groundwater pumps. But starting in 2016, a new partnership between Audubon New Mexico and Native American tribes-announced yesterday-will give the river exactly what it needs: water.

Earlier this year, after meeting with scientists and government officials, Audubon New Mexico decided it was time to address the river and surrounding ecosystems' declining health. The group reached out to six Middle Rio Grande pueblos and offered to purchase or lease the water the tribes have stored in upstream reservoirs to bolster the Rio Grande's flow during dry times.

But the Pueblo of Sandia had a better plan: Rather than sell, it volunteered to devote about 33 million gallons of its reservoir water next year to help reestablish a healthy river system-the first donation of its kind.

"With ever increasing demands put on the river, Sandia offers this water as a dedication to the inherent value the river has to all people and the habitat it supports," tribal Governor Isaac Lujan said in a statement. "Sandia hopes this donation can be used as an example of what can be done for the health of the river and the community when stakeholders work together."

The pueblo's contribution, which will be released from El Vado Reservoir when water levels get drastically low, could provide relief for the cottonwood forests along the river's banks and endangered species such as the Rio Grande silvery minnow and the Southwestern Willow Flycatcher. Listed for federal protection in 1995, the flycatcher depends on the river's forested edge for its breeding and nesting habitat-habitat that's been suffering in recent dry years. The Middle Rio Grande also houses two Important Bird Areas, which sustain migrating waterfowl and flocks of cranes in wetter times. Sharon Wirth, the freshwater program manager for Audubon New Mexico, says that by targeting areas that are prone to drying out, her team can focus on conserving critical nesting and breeding spaces for birds.

Wirth and the rest of the staff at Audubon New Mexico are very optimistic about their pilot program. Like many of the rivers in New Mexico, the Rio Grande suffers from the competing interests of states, cities, and farmers. That makes the gift from the Pueblo of Sandia all the more essential. "To be working with someone who is really just all about the river for the inherent value of the river-the intrinsic value of water in the river. There's something really beautiful about that," Wirth says.

The donation marks the first partnership between Audubon New Mexico and the pueblo. Already, the Pueblo of Isleta has followed suit, contributing a share of its stored water for next year. Other tribes may also join the program, either by donating or selling their stores to Audubon New Mexico, says Wirth.

With more hands on deck, and more water coming down the river, Wirth is hopeful the habitat will rebound. The donation has "unshackled the system to a certain extent," she says, adding this is the first time the river's surge hasn't been directed by a state or federal agency. Instead, the pueblos and Audubon New Mexico are leading a project that has a shared vision: a healthier Rio Grande.
Correction: Due to an editing error, the article incorrectly stated that the water in the El Vado Reservoir is sourced from the Rio Grande.

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The Surprising Gift From New Mexico's Pueblos That Might Save the Rio Grande

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by Laura Paskus Churning along a 2,000-mile route from Colorado to the southern tip of Texas, the Rio Grande is a critical water source for millions of people, flora, and fauna in the Southwest.

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"The Rio Grande: The Lifeblood of New Mexico"

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"The Rio Grande: The Lifeblood of New Mexico"

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This article highlights the a Tesuque Pueblo elder who references the importance of the Rio Grande to his culture and identity.

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LOUIE HENA SITS AT THE HELM of our Native Cultures Feast and Float excursion as it drifts a long an easy stretch of water south of Taos. He looks at home-and he should. He's spent the better part of three decades perched on inflatable bolsters as lead guid or oarsman. six-foot-long oars in each hand, navigating the Río Grande.

With his signature sunglasses and ball cap pulled tight over a cascading salt-and-pepper ponytail, the expression on his 61-year-old face gives away little, though he'll soon share some of what he knows about every current, the steep-walled canyon, the cottonwood saplings he planted along the banks, and the place where a boulder familiar in winter is now submerged as the water runs flush. He's seen the river in every season.

"Water and I are one," he says. The Tesuque Pueblo member's ancestors lived here long before his hands and oars dipped into the water. He spent childhood days fishing and camping with his parents along the sandy shores. In the 1980s, his passion turned professional as he joined his friend Cisco Guevara at Los Rios River Runners. Guevara had founded the Taos-based rafting company in 1978. Back then, the two self-proclaimed "yahoos" sought out the big waves of the Taos Box and the Racecourse, legendary stretches of rapids along the northern stretches of the Río Grande. Today Hena, now a grandfather, keeps to more placid waters. Through the river's flows of epic years and eking-by years, the places along its route have remained largely unchanged. Credit for that goes partly to a piece of landmark legislation hitting its 50th anniversary this year.

I've joined this Native Cultures Feast and Float, which combines time on the water and the lore along its banks with a Pueblo-style feast at its end, for a unique way to appreciate the Río Grande. Hena and Guevara created the excursion in the early 1990s as a new way to get more people out on the water by explaining its deep cultural ties.

But I'm also here to pay homage to the nation's Wild and Scenic Rivers Act, which in 1968 included a healthy stretch of the Río Grande as one of the eight original waterways shielded from development. Far from empty bureaucratic lingo, the act has real impact for Hena and the Pueblo peoples who hunt, fish, forage, irrigate, and worship along these waters-as well as those of us who recreate here. Thanks to its safeguards-and Mother Nature's blessings of rain and snow-Hena's 13 grandchildren and, someday, their grandchildren will be able to run the river as he does now.

On the heels of the 1964 Wilderness Act, which protected wildlands, the Wild and Scenic Rivers Act sheltered waterways with similar outstanding scenic, recreational, and cultural values. A designated "wild river" is inaccessible except by trail and has primitive shorelines and unpolluted water. A "scenic river" is similarly remote and undeveloped, though roads can reach its banks. The Río Grande has a total of about 68 miles in the two categories, adding up to a pristine experience along its northern reaches-from where it tumbles into New Mexico at the Colorado state line, through the 800-foot-deep chasm below the Río Grande Gorge Bridge, and churning into whitewater rapids, on to the Orilla Verde Recreation Area, about 12 miles south of the bridge. There the river widens and begins the rest of its languorous journey through the state to the Texas-Mexico border.

Much of the wild and scenic mileage doubles as part of the Río Grande del Norte National Monument, nearly a quarter-million acres of rugged plains, volcanic cones, and steep canyons. Nationally, the Río Grande has few companions in its freewheeling ways. Of the three million river miles in the United States, fewer than 13,000 miles have either designation. Even in New Mexico, the Río Grande has little company; a total of just 57 other miles share the wild and scenic protections, including stretches along Ríos Jémez, Pecos, and Chama.
Above: Rafters admire the beauty of the Río Grande.
Hena doesn't need an act of Congress to realize the river's cultural value. He intuits it through his very body. His tribal history says his ancestors lived along the Río Grande as early as AD 950. Petroglyphs etched along the banks tell the story of their presence as we float past in near silence, the only sound the subtle dip of the oars into the water. Hena points out a spiral petroglyph a dozen feet up the hillside, etched into a basalt boulder. He finds that ancient symbol of continuance all around us-in the river's pooling eddies and the rounded horns of bighorn sheep on the rocks above. "It's the pattern of the galaxy we live in and the pattern of a DNA spiral. It's the shape in our own hands," he says, closing his fist, thumb side up, to reveal another spiral. "We're connected to everything around us."

That connection feels tangible as the passengers on the raft share looks of agreement. Studies show that moving water refreshes people mentally, physically, and spiritually. As Guevara says: "Water reaches deeply into what makes us human."

THE RÍO GRANDE MAY BE HENA'S OFFICE NOW, but it's always been his church. "Earth Mom," he says, "is sacred." Its waters have remained pure enough that he submerges himself in them as part of his spiritual practice. The church walls are the canyon, which stretches up the hillside to the far peaks of the Sangre de Cristo Mountains in one direction and the top of the Jémez Mountains in the other. North toward the Río Grande's headwaters, in Colorado's San Juan Mountains, lies the altar, the source.

In Hena's church, "the music changes every second," he says, as he listens for the calls of bald eagles, who are recovering here after near extinction, and the crash of reintroduced river otters through the willows. We hear the pulse of rippling water, and Hena advises us to watch for Avanyu, a water serpent and powerful deity to Pueblo peoples. It is revered as the water guardian, the carrier of energy as it flows from the sky, through the river's muddy, churning waters, onto farm fields, and into the bodies of those who touch it. Avanyu shows itself in the waves, each one a curved spine flowing downstream with us.

For Puebloans, Avanyu represents but one element of the spirituality of water. In this place, where the average rainfall is only 11 inches a year, the perpetual prayer is for water-enough to leave the land soaked, the rivers flush, and the people sated. Where some may see scarcity, Pueblo people see abundance. "We're groundwater specialists," Hena says as he gestures to the evidence of water's path as it flows from the mesa tops down the canyon walls. Verdant patches of cottonwoods spring up among the surrounding sage and juniper, trumpeting the presence of just enough water near the ground's surface.

That same water continues downriver to feed crops. Hena's plot is at his home pueblo, some 50 miles south of here. The kinds of traditional crops he tends are on our minds as our rafts skid onto the sandy pullouts at the Orilla Verde Recreation Area. There, Hena's wife, Serena, a daughter, and a granddaughter await with a traditional feast-day meal. We pile our plates with red chile stew, blue corn posole, calabacitas, and oven bread. From chopping wood to tending horno fires to baking Indian pies for dessert, Hena's whole family plays a part in the outings.

MONTHS LATER, WHEN RAFTING weather has given way to winter, Hena, Guevara, and I gather in the same structure where we once lunched. We huddle close to a campfire and sip blue corn atole to warm ourselves. Hena describes how these waters and hillsides are his pantry. He, along with several other Puebloans, switched to a pre-European-contact diet with foods their ancestors likely harvested here: fish from the river; piñon, chokecherry, and cactus blossoms foraged from the hillsides; corn, beans, squash, and other harvests from their fields. His friend Roxanne Swentzell, the Santa Clara Pueblo artist, chronicled their experiment in The Pueblo Food Experience Cookbook. The weight just fell off, Hena says, and aches that had troubled his aging bones disappeared. He giggles as he recalls the group's gatherings to compare their weight loss, clothes dripping off their smaller frames.

"I'd rather come here to get my medicine than stand in line at Walmart," he says. He gathers juniper berries for a tea rich in vitamin C to fight colds and collects willows to grind in place of aspirin. "The Río Grande is the lifeblood of New Mexico," he says. "If this goes, everybody's gone."
Above: John Harvey pulls rafters along the Río Grande.
Concerns about the river's health have heightened this summer, after a remarkably dry winter. Releases from dams and reservoirs will attempt to keep the river's northern reaches flowing, in part to protect endangered species like the Río Grande silvery minnow and help farmers irrigate, but water levels are likely to remain especially low. There may not be big water farther north, but the stretch that the Native Cultures Feast and Float navigates will continue to amble along. Of course, conditions can change dramatically with one storm. Scientists and outfitters are looking to the promise of the monsoons to keep the river flowing.

Hena has seen plenty of dry years alternate with wet ones. Throughout, the Wild and Scenic Rivers Act has protected the Río Grande and its banks from development and ensured that indigenous lifeways can be passed to future generations. As a tribal elder, Hena shares his knowledge with his seven children and their children. They have grown up along the river. Some now guide and farm alongside him. (His 27-year-old daughter, Chrystal, began guiding when she was just 13.)

As a member of the Traditional Native American Farmers Association, Hena teaches permaculture and indigenous agricultural practices to Native youth. "We want our young people to know who they are," he says. The teachings take place during summer workshops at the Camino de Paz School and Farm, in Santa Cruz, and along the terraced walls of these river canyons. There, students learn to forage native plants and repopulate them by burying seed balls.

As we depart, Hena and I drive a bit farther north to a circle of stones marked with petroglyphs, which Hena considers his altar. Along the way, we spot a bald eagle perched on a ponderosa snag. It's one of two, a mating pair, that call this stretch of canyon home. Hena rolls down the SUV's window and calls out a Tewa greeting. The eagle turns its head in our direction but doesn't stir. Perhaps it recognizes a friend and fellow spirit.

Hena parks and scrambles up the hillside to say his private prayers. I wait in the car. As I gaze at the view, another eagle glides on canyon uplifts. Its wings wide, it soars and corkscrews as though it's floating on Earth Mom's breath. Spiral on, Hena would say. Spiral on.

CHARTED WATERS
Los Rios River Runners
Offered March through November, based on demand, the Native Cultures Feast and Float is a gentle trip with two guides. One rows while a Native American (Hena, his children, or friends from neighboring pueblos) shares Puebloan history and lore. After the hour-and-a-half float, participants disembark for a traditional feast-day meal. Los Rios also offers a full slate of half- and full-day trips along the Río Grande, through the Taos Box, Racecourse, and Lower Gorge sections. Additional trips explore the Río Chama and can be extended to multiday adventures. Trips start at $54 (575-776-8854, losriosriverrunners.com).

Cottam's Rio Grande Rafting
Combine mountain biking and rafting on trips through thrilling sections of the Río Grande, like the Racecourse and Taos Box, plus paddleboarding and "funyaking" in single-person inflatable kayaks (575-758-2822, cottamsriogranderafting.com).

Far Flung Adventures
This longtime outfitter offers full-day adventures along the Río Grande that add horseback riding, fishing, and rock climbing to paddling. More laid-back versions blend soaking in hot springs with rafting. Multiday excursions along the Río Grande and Río Chama include riverside tunes from local musicians and yoga classes (800-359-2627, farflung.com).

Kokopelli Rafting Adventures
This environmentally minded outfitter launches adventurous half-day to multiday trips on the Río Grande and Río Chama (505-983-3734, kokopelliraft.com).

New Mexico River Adventures
Choose your own adventure with whitewater classes, rafting, paddleboarding, and climbing adventures suitable for the whole family. Some trips include beer or wine tastings (800-983-7756, newmexicoriveradventures.com).

New Wave Rafting Co.
Ride wild waves on the upper stretches of the Río Grande or take the kids on a scenic lunch float near the Orilla Verde Recreation Area (800-984-1444, newwaverafting.com).

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The Rio Grande: The Lifeblood of New Mexico

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LOUIE HENA SITS AT THE HELM of our Native Cultures Feast and Float excursion as it drifts a long an easy stretch of water south of Taos. He looks at home-and he should. He's spent the better part of three decades perched on inflatable bolsters as lead guid or oarsman.

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"Diversion Tactics: Long Fight Over Water Rights May Be Near End"

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"Diversion Tactics: Long Fight Over Water Rights May Be Near End"

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This article focuses on the challenges Pueblo communities still face in accessing water rights after the resolution of Aamodt.

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The longest active federal lawsuit in the country could be headed to resolution, but there's still much to be determined in the next six months before the New Mexico State Engineer vs. R. Lee Aamodt, et al. case is closed. And even then, the litigation over water rights in northern Santa Fe County in could drag on for several more years.

"The situation is fluid," said Sandra Ely, project manager for Santa Fe County's utilities department, said, not realizing the pun.

The case was brought 51 years ago to sort out what the lawsuit said was "the co-mingling" of water rights between Indian tribes and non-Indians living within the Pojoaque-Nambé-Tesuque stream system. That includes the pueblos of Nambé, Pojoaque, San Ildefonso and Tesuque, and non-Native people living in the Pojoaque Basin north of Santa Fe.

Though two settlement agreements were signed since 2010, the latest approved by a federal court a year ago, much needs to happen to meet a Sept. 15 deadline before the court can declare a final decree.

"The final decree is the end of the lawsuit," Peter Chestnut, an attorney representing San Ildefonso Pueblo, said, though he cautioned that even that might not put an end the litigation.

"There is a provision in the settlement agreement that a regional water system be built. If that's not done, one of the pueblos could take it back to court."

In an emailed response to submitted questions, County Attorney Gregory Shaffer said the lawsuit would not end with a final decree, saying it would be subject to appeal. But he made the same point as Chestnut about failing to meet the deadline for completing a new water system to serve the area.

"In that event, the decree 'shall have no force or effect,' " he wrote, quoting from the settlement agreement. " 'The Settlement Agreement shall no longer be effective,' and 'title to other property acquired or constructed with federal funds appropriated or made available to carry out the activities authorized by (the federal act) shall be returned to the federal government, unless otherwise agreed to by the pueblos and the United States and approved by Congress.' "

Shaffer said that provision "creates substantial uncertainty and risk," potentially leaving property acquired with state and county funds effectively stranded.

However, he added that the county was working closely with the pueblos to minimize the risks of the system not being substantially complete before the county commits funds.

The deadline to complete the water system is still seven years away.

Before that, and what remains fluid now, are the results of an environmental assessment by the Department of Interior's Bureau of Reclamation, declarations by individual well owners as to whether they'll tap into the yet-to-be-built $260 million regional water system, securing the remaining funding to pay for it and, most importantly, the transfer of water rights to make it all possible.

The state Engineer has yet to approve the transfer of 1,752 acre-feet of groundwater from the Top of the World Farm in Taos County to Santa Fe County so that amount can be diverted from the Rio Grande. That represents about 44 percent of the water to be diverted from the river to supply a system that would serve 9,200 customers.

But Taos County protested the transfer. Hearings on that case were held in October and attorneys filed final paperwork in December. A hearing officer is to make a recommendation to State Engineer Tom Blaine, who will make a final decision.

A spokeswomen for the Office of the State Engineer said that decision should come some time this summer.

Also pending is the Bureau of Reclamation's final Environmental Impact Statement for the water system. The comment period ended last month, and the final EIS should be published in a few months. Not subject to the September deadline, a record of decision spelling out details of how the regional water system will be built will likely come next year.
An 'achievable goal'
Planning for the regional water system is well underway, with construction scheduled to begin a year from now.

In all, 4,000 acre-feet of water per year will be diverted from the Rio Grande north of the Otowi Bridge on N.M. 502 and treated at facilities on San Ildefonso Pueblo. The settlement calls for 2,500 acre-feet to go to the four pueblos and 1,500 to Santa Fe County.

Nearly 200 miles of underground pipeline will distribute the water, and storage tanks are to be built at various locations up and down the valley. The deadline for the system to be substantially complete is June 30, 2024.

The idea is to bring in additional water from outside the basin and reduce the reliance on groundwater so not to deplete the aquifer. Groundwater tests in some areas have shown traces of uranium.

The federal government will pay almost two-thirds of the $260 million cost. As part of the 2010 settlement, President Obama signed legislation providing $82 million in immediate funding, some of which is being used by the Bureau of Reclamation for the project design. Congress authorized another $92.5 million in future funding subject to approval. Chestnut said about $25 million in federal funding is expected to be appropriated this year.

The state is to provide about $72 million under the agreement, about $15 million of which has already been paid. The rest is subject to appropriation.

Santa Fe County, which is serving as the fiscal agent for the project, is obligated to pay $11.7 million, but that doesn't include an estimated $9 million it will pay after the system is substantially complete to bring water to county residents who elect to hook up with the system.

The utility will operate independent of any of the government entities and will be overseen by a board of directors. But the makeup of the board hasn't been finalized.

In December, County Commissioner Henry Roybal proposed to expand the board to include two water utility customers. Under the agreement, the board is to be made up of one representative from each pueblo and one from Santa Fe County. While Roybal's proposal was accepted by the county commission, it is still subject to approval by each of the pueblos.

Roybal's proposal was in response to concerns from non-Indian county residents who felt they were being under-represented and that the pueblos would have too much authority.

There has also been opposition and reluctance from people who want to keep using their wells and don't necessarily want to give up their water rights and hook up to a water system and have to start paying for the service. So, some time this summer, they will have to declare whether they will or not - or connect with the system, but still keep a portion of their water rights, allowing them to use at least 0.5 acre-feet of water per year from their wells.

While the case could still drag on for years, County Attorney Shaffer said he's confident the next major milestone of a final decree on Sept. 15 is in sight.

"First, District Court Judge (William P.) Johnson has stated that he intends to meet that deadline," he said. "Second, there are only a handful of inter se objections to non-Pueblo water rights, which makes doing so an achievable goal."

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Diversion tactics: Long fight over water rights may be near end

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The longest active federal lawsuit in the country could be headed to resolution, but there's still much to be determined in the next six months before the New Mexico State Engineer vs. R. Lee Aamodt, et al. case is closed.

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This website summarizes the general actors, agreements, and rules responsible for indigenous water rights in New Mexico.

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Pueblo Water Rights - Middle Rio Grande Water Advocates

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Pueblo Water Rights Federal law declares that Native American rights for using water out-prioritize non-Native American water rights. However, quantification of Native American water rights has, in most cases, not been determined. Neither has the effect of those quantified water rights on non-Native water rights holders been significantly considered.

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This article focuses on the Santa Ana Pueblo's efforts to restore the riparian forest that lines the banks of the Rio Grande.

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SANTA ANA PUEBLO, New Mexico - Roy Montoya remembers the bosque. He remembers riding in a horse-drawn wagon through the bosque - the cottonwood forest that lined the Rio Grande - as he and his family made a summer pilgrimage to the "old pueblo," called Tamaya.

"When I was young, only three or four families had cars. The rest of us had wagons," says Montoya, who today, at 60, is the Santa Ana tribal administrator. "We used to cross the Rio Grande and ride up the old railroad bed."

The riverside forest was like an open park, and families gathered beneath the cottonwoods to escape the summer heat. "When we were allowed, we went swimming and played in the bosque," he says. "We took the elderly people down to the river. We gathered mushrooms down there."

Then life changed. Montoya grew up and joined the military, then went to school and worked in accounting for the Bureau of Indian Affairs. It was 1980 before he visited the bosque again. "It was a totally different place," he says. Gone was the open forest. In its place was a thicket of exotic trees so dense, "you couldn't crawl through there."

But Montoya remembered the bosque, and eventually that memory inspired action. Today, the Santa Ana Pueblo is bringing back the bosque through an ambitious restoration effort underwritten by the tribe's casino and restaurant operation. The project has attracted attention - and funding - from federal agencies and private foundations. It's the most dramatic of many efforts along the Middle Rio Grande in central New Mexico to revive the largest cottonwood gallery forest in the Southwest.

The Santa Ana project offers hope in a region that scientists estimate has lost up to 98 percent of its rare riparian woodlands - woodlands that provide critical habitat for wildlife in an otherwise dry landscape. It also demonstrates what can be done when red tape is minimized. As a sovereign nation, the Santa Ana Pueblo has been able to take a quantum leap in restoration on the Rio Grande when hosts of federal, state and city officials have made only halting progress.

"The pueblos live a little closer to the ground," says Les Ramirez, an Albuquerque attorney and Kiowa Indian who is a consultant for Santa Ana. "Their government operations are a little more streamlined."

Some days, it seems that the former Soviet Union must have been a little more streamlined than the bureaucracy that manages the Middle Rio Grande. Any discussion of river restoration must include a litany of federal agencies, interstate commissions, state entities, Indian pueblos, farmers, cities and environmental groups. While this tangle of interests is slowly turning toward restoration, it may never fully embrace it. Thanks to dams and diversions, and growing cities and suburbs along the riverbanks, the bosque will never return to the way it was when Montoya was a boy. And questions remain about whether a shackled Rio Grande can nurture a healthy riparian forest.

But with time and cooperation, some say New Mexico could be home to patches of wild forest that provide havens for endangered wildlife - what Les Ramirez calls "pearls on a string."

Roy Montoya was born in 1940, the year the Middle Rio Grande saw its worst flood in 60 years. The deluge sent Santa Ana people moving to high ground and inundated downtown Albuquerque, destroying the Sisters of Loretto convent. The next spring, it rained an unheard-of 29 inches between January and May, flooding 50,000 acres and knocking out dams and railroad bridges.

It was the last great flood this stretch of river ever saw.

Over the decades that followed, the Middle Rio Grande Conservancy District, the Bureau of Reclamation and the U.S. Army Corps of Engineers tamed the Middle Rio Grande. They built dams on the Rio and its tributaries. They bulldozed levees and set up rows of Kellner jetty jacks - iron beams bolted and wired together to capture sediment and stabilize the riverbanks.

Historically, the Rio Grande through the Middle Valley was a braided, meandering river, 2,000 to 3,000 feet wide. The floodplain was dotted with backwaters, teeming with waterfowl and fish. Once engineers were finished, though, it was a uniform 600 feet wide, and from Santa Ana to the Rio Puerco, levees and jetty jacks locked it in place. As a conduit for water, it was more predictable and, perhaps, more efficient. As a river, it was completely altered.

As the river changed, so did the bosque, because the bosque was tuned to the river's clock: Historically, each spring, the Rio Grande would swell with snowmelt and spill over its banks. The floodwaters would create a muddy seedbed for the cottonwoods, which dropped thousands of gauzy seeds to coincide with high water. When the timing was perfect, young cottonwoods would sprout.

It was a perilous process, and only a fraction of the seeds survived, says former University of New Mexico professor and bosque expert Cliff Crawford. Some years, floods would wash seeds away, while in other years, the ground would dry up too quickly, and seedlings would die. "It can't be too much, it can't be too little," he says. "It has to be just right."

Dams subverted this delicate process by eliminating spring floods. In the place of cottonwood seedlings, a thicket of exotics popped up. The grand old cottonwoods were crowded by Russian olive, Siberian elm and Asian saltcedar or tamarisk, trees brought to the U.S. for landscaping, which escaped and ran wild along virtually every river in the Southwest. Native plants, animals and birds were squeezed out (HCN, 5/25/98: Tackling tamarisk).

For the first time, the bosque began to burn. In its natural state, the bosque had seen occasional, low-intensity ground fires. The old cottonwoods had rarely ignited. But with no floods to wash away or bury debris or promote decomposition, deadwood and tinder piled up on the forest floor. Tamarisk and shade-tolerant Russian olive gave fire a ladder. Flames climbed into the tops of the cottonwoods, torching them.

Following fires, and in the absence of floods, the exotics had all the advantage. The cottonwood bosque became in places an impenetrable tangle of exotic trees.

This was the scene in 1996, when the Santa Ana Pueblo hired Todd Caplan to create a tribal natural resources department. Fresh out of the University of Montana with a degree in restoration ecology, Caplan's first mission was to start removing tamarisk from the bosque. Over two years, his mandate morphed into a full-blown river restoration program.

In some cases, if left alone, a river will restore itself, says Caplan, but not here. Cochiti Dam, built upstream from the pueblo in the mid-1970s, not only stopped spring floods, it trapped sediment that had washed down from muddy tributaries. Where once the river set down sediment and actually built upon its floodplain, Caplan found the situation reversed: In the two decades since the dam was completed, the river had carved a narrow channel eight feet into its bed.

Dam managers released occasional high flows, but chances of getting sufficient water in the river to inundate the floodplain and germinate young cottonwoods were zilch. Worse, Caplan worried that if the river carved its bed any deeper, the groundwater table would drop so low that even existing cottonwoods would be left high and dry.

The situation called for drastic measures - and heavy machinery. Caplan hired pueblo work crews to mow and root-plow a huge thicket of tamarisk. They chopped up the roots, added gypsum to the salty soil and planted native grasses.

The next target was the shade-tolerant Russian olives that had crowded in under the cottonwoods. Tractors outfitted with mulching heads ripped into the exotic trees. Crews followed with chainsaws and with backpack tanks of herbicides to poison the roots. When even that failed to kill the larger Russian olives, Caplan's crews brought in log loaders and ripped out stumps and roots like huge, snarled carrots.

"We contracted with people from Montana, Texas - all over - for equipment," says Caplan.

Two years later, the results are stunning. Native grasslands have come back on 115 acres, while 235 acres of bosque are once again open, sun-dappled cottonwood groves.

Ecological restoration has also become an asset for economic development on the Santa Ana Pueblo, which already houses the Prairie Star Restaurant and Santa Ana Star Casino, a golf course and a huge soccer field complex. The bosque has become the setting - and a major selling point - of a new 350-room Hyatt Regency resort and spa called "Tamaya" (HCN, 6/4/01: Tribal Links). The resort offers carriage rides down to a lighted walking path through the bosque, says Roy Montoya. "The whole visual effect is really fantastic."

But there is a hitch: The present bosque's days are numbered. All the cottonwoods in the forest are about the same age (Caplan believes they were germinated by the 1941 flood), and they stand on high ground, eight feet above the level of the river - well out of the reach of any floodwaters. Without floods, no young trees will ever sprout here. From time to time, the pueblo will have to replant the cottonwoods, says Caplan, or find a way to induce them to send up shoots from their roots, the way aspen trees - close relatives of cottonwoods - do.

Contemplating their next move, pueblo officials wondered if, rather than bringing the river up to the floodplain, they could bring the floodplain down to the river. In the fall of 2000, the bulldozers rolled again, this time to take four feet of earth off parts of the floodplain along six miles of the Rio Grande within the pueblo. Thousands of pounds of earth were pushed into the river's path to help replenish its sediment load. The floodplain, as a result, was low enough that last spring's meager floods from Cochiti Dam washed over it, germinating a new generation of cottonwoods.

All this work would be for nothing, of course, if the river continued to carve deeper. So crews embedded massive steel walls in the riverbed to hold it steady. They also widened the river channel to create backwaters where someday, endangered silvery minnows may find refuge (HCN, 8/28/00: Shaky truce on the Rio Grande). Still, to really restore this stretch of the Rio Grande, Santa Ana will need silt, and lots of it. There's plenty to be found in the bottom of Cochiti Reservoir, says Caplan, but putting it back in the river may be at odds with maintaining clean water standards.

Nonetheless, the project is getting attention. What started with a $37,000 investment from the tribe has garnered millions more from the Bureau of Reclamation, the Army Corps of Engineers, the Fish and Wildlife Service, the Environmental Protection Agency, the Forest Service, the Bureau of Indian Affairs and private foundations. Caplan says he's become a tour guide, escorting groups of students, agency staffers and scientists through the restoration area.

"It's just never ending," he says. "It's the first project to step out into the river like this on the Rio Grande. It's become the model for tribal-federal cooperation."

Bringing back the bosque isn't always such a grand affair.

Downstream from Santa Ana, on the northern edge of Albuquerque, the Sandia Pueblo has its own project under way. Using chainsaws, herbicides and a single backhoe, pueblo work crews have cleared 20 acres of Russian olive and Siberian elm. They have disassembled jetty jacks by hand, giving the angle irons and wire to tribal members to build fences. They've planted cottonwoods, native shrubs and grasses.

As at Santa Ana, "we based our design on memory," says Beth Janello, the pueblo's environmental director. "One elder said he could see 100 yards in every direction" while standing in the bosque. Someday, she says, the Sandias will be able to see that far again, but keeping it that way could be tricky. The pueblo owns only the east bank of the Rio Grande, while private land across the water is still thick with tamarisk - infamous for its ability to broadcast its seeds via wind and water.

Follow the river from Sandia down through the Middle Valley and you'll run into more efforts to revive the bosque. In Albuquerque, the city open-space department and environmentalists have used prison work-release crews and volunteers to clear exotic trees and plant native vegetation. Teachers in Belen are involving elementary school children in the effort, while in Socorro, residents have created a task force to keep teenage partyers from trashing the bosque. The list goes on.

"The model that was developed at Sandia offers enormous potential for communities to restore the bosque in their neighborhoods," says Deb Hibbard with the nonprofit Rio Grande Restoration in Albuquerque. "With public participation and awareness, you can accomplish a lot without it costing a lot. You can have enormous impact on a small scale."

Some of the pioneering research is being done even farther south, on the Bosque del Apache National Wildlife Refuge, which hosts thousands of migrating cranes, geese and other waterfowl each year. While the refuge is a haven for wildlife, it's heavily managed. In one staff member's words, "Every inch of this refuge has been gone over with a bulldozer - twice."

Refuge biologist John Taylor and ecologist Gina Dello Russo have developed many of the restoration methods being used upstream. They've turned 1,000 acres of tamarisk and weeds back into a patchwork of native vegetation. Much of the bosque within the refuge is now irrigated occasionally to mimic floods, and managers plant corn and other crops to feed the flocks of birds that winter here.

So far, most of the work has been done outside the levee, which runs up the Rio Grande's west bank, says Dello Russo. The next project, however, will be to move across the levee, and start restoring 4,000 acres of bosque along the river. The 10-mile stretch offers a unique opportunity, she says, because here, the river hasn't carved into its bed as it has upstream in Santa Ana Pueblo. Here, widespread floods are still possible without digging into the floodplain or asking a laundry list of shareholders for huge amounts of water.

And floods are needed to restore the bosque on a large scale over the long run, says Dello Russo. Not big floods, she says, and not every year. But the Rio Grande needs to flood, and soon. Many of the big cottonwoods will die within the next 60 years, she says, and the bosque needs young sprouts. Without young trees, the bosque will be a thing of the past.

So, it all comes back to water, and water on the Rio Grande is always a contentious subject. In the Middle Valley, six Pueblos and the city of Albuquerque share the Rio Grande with farmers, who use 90 percent of the water from this reach to irrigate pecans, cotton and chilies. Environmentalists, meanwhile, have fought tooth and nail to keep some water in the river for the endangered Rio Grande silvery minnow and other wildlife.

The bosque can be a rallying point for urban and rural residents, and for farmers and environmentalists, but recent history shows that its power as an icon may not be enough to move the entrenched bureaucracy on the Middle Rio Grande. Over a decade ago, New Mexico Republican Sen. Pete Domenici created a committee to study how best to manage the bosque. The group turned to bosque guru Cliff Crawford.

Heading an interagency team of scientists, Crawford in short order produced the "Bosque Biological Management Plan." The plan revealed an ecosystem stressed by humans and exotic tree species, and offered a blueprint for how to return it to a mosaic of native trees, shrubs and grasses. Clearing tamarisk and other invaders would be necessary, the team wrote, but the key to long-term restoration would be to use dams to mimic the natural fluctuations of the river, including small-scale spring floods.

"The key to the bosque is the river," says Crawford. "It will never be like it was before, but you can allow the river to be somewhat like it was. And if you allow it to mimic its natural flow regime, you can allow some semblance of the bosque to survive."

Shortly after the plan was released in 1993, a dispute erupted over the silvery minnow. Since then, Domenici has brought home several million federal dollars to fund small-scale bosque restoration programs. But most discussion now centers on the minnow and Southwest willow flycatcher, rather than the ecosystem on which they both depend, says Crawford. In the case of the minnow, this has meant that agencies have focused on survival flows during summer months, rather than on spring floods.

"The Bosque Biological Management Plan doesn't come up for a lot of discussion by the feds. It's very frustrating," says Crawford. "The ESA business has so consumed them, that they're after some level of single-species management. I think they're missing the point. You can't look at an endangered species in a vacuum."

Some within the agencies, however, are keeping their eyes on the ecosystem and on flooding. As Gina Dello Russo works to revive the riparian area in the Bosque del Apache, the subject of floods is unavoidable. It also presents some interesting problems.

The San Marcial railroad bridge is one of them. Downstream of the refuge, it is slung low enough across the river that any significant flood would wash it out. More formidable is development on private land east of the river, an area that is unprotected by any levee. "There are a couple of homes on the east side of the river that we would flood with 6,000 cfs (cubic feet per second)," she says. And 6,000 cfs is small potatoes compared to the 40,000 cfs rumblers that washed through here in the 1920s and '30s.

The good news is that little of the land east of the river has been built on. Most of the ditches and farms have been abandoned, and the floodplain has been taken over by tamarisk. Dello Russo has been talking with landowners about putting voluntary conservation easements on about 16,000 acres of private land that might be inundated by mild spring flooding. So far, she says, the response has been good. She sells the program as flood protection, she says, because even if the mainstem Rio Grande never floods again, two of its tributaries - the Rio Salado and the Rio Puerco - occasionally do, and any houses in the floodplain will be right in the water's path.

Flooding will surely meet resistance from farmers elsewhere in the Middle Valley, who see floods and bosque restoration as competition for scarce water. But Paul Tashjian, a hydrologist with the Fish and Wildlife Service's Bosque Hydrology Group, points out that the native bosque uses considerably less water than a forest of exotics. An acre of tamarisk at Bosque del Apache uses four acre-feet of water in a year, while a study done in the 1960s found that Russian olive can suck up seven or eight acre-feet, Tashjian says. A patchwork of native cottonwoods and willows, he says, uses 2.6 acre-feet.

Restoring the forest will also save money spent on firefighting and flood control, adds Tashjian. Increasingly, agencies, local officials and ordinary citizens are realizing that a wilder river and a revived bosque make sense economically as well as ecologically. The biggest hurdle is the state of New Mexico, he says, which fears that restoring the river will hamper its ability to deliver water to Texas, as it is required to do under a 1939 compact.

Santa Fe conservationist and writer William deBuys, who chaired Domenici's original Bosque Conservation Initiative, says that without leadership from Washington, D.C., real progress on an ecosystem level will remain out of reach.

"If we're going to resolve this thing, we're going to need leadership from the highest level - the kind of leadership that (former Interior Secretary) Babbitt showed for the San Francisco Bay and the Sacramento River Delta," he says. "So far, (Interior Secretary Gale) Norton has not indicated that she is willing to make that commitment."

In the meantime, the bosque is in the hands of the people who live and work along the Rio Grande, many of whom are looking to the pueblos for progress. "

Santa Ana is really cutting the way," says Paul Tashjian. "To have the pueblos just out there doing it gets people out of the planning mode and really gets them thinking about how this can happen."

Les Ramirez, who worked as a special counsel to Secretary Babbitt, specializing in Indian water rights and ecological restoration, says the pueblos are creating a model for the whole Rio Grande Basin - a model that might someday lead to a series of refuges, "pearls on a string."

"If you're talking about returning the river to what it was 100 years ago, then I don't know where you get the money to do that. I don't know where you get the political will to do that," he says. "But if we can bring the Pueblo Santa Ana back into ecological function, and that can be replicated along the basin, perhaps you don't need to do a massive program that would take us back to the 1800s."

By taking a broad ecosystem approach, Ramirez says, the people along the Rio Grande can avoid fights down the road over endangered species. That is perhaps one reason federal agencies - and New Mexico's congressional delegation - have been quick to get behind the Santa Ana Pueblo. "They are looking for a big success that they can build on," says Ramirez.

"The problem isn't really who owns the water. The problem is really water management," he says. "It's really a matter of getting the major water users and sovereigns in the basin to come together and say, 'What can we do to use water more efficiently?' We all depend on this thin ribbon of water."

The timing is critical, says Gina Dello Russo, who remembers picking wild asparagus and hongos, or mushrooms, under the old cottonwoods on her grandparents' farm near Socorro. It's critical because the bosque - and the memory of what it once was - is fading.

"The grandparents (in communities up and down the Rio Grande) still remember going down and having picnics by the river, and how cool it used to be under the cottonwoods," she says. "Once we lose these old folks that actually have that memory and that connection, we'll have lost that chance to convince people that there was something beautiful called the cottonwood bosque."

Greg Hanscom is HCN's associate publisher.
This story is funded by the McCune Foundation.
YOU CAN CONTACT ...
* Todd Caplan, Santa Ana Pueblo, 505/867-0615;
* Beth Janello, Sandia Pueblo, 505/771-5080;
* Deb Hibbard, Rio Grande Restoration, 505/266-3609;
* Paul Tashjian, U.S. Fish and Wildlife Service, 505/248-7958;
* Gina Dello Russo, Bosque del Apache National Wildlife Refuge, 505/835-1828.

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SANTA ANA PUEBLO, New Mexico - Roy Montoya remembers the bosque. He remembers riding in a horse-drawn wagon through the bosque - the cottonwood forest that lined the Rio Grande - as he and his family made a summer pilgrimage to the "old pueblo," called Tamaya.

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"Aamodt Settlement - Signed and Sealed but Not Delivered"

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BY KAY MATTHEWS
Editor of La Jicarita

Maire O'Neill of the Los Alamos Reporter seems to be the only local reporter who bothered to let people know that the additional funding sought by the New Mexico congressional delegation to underwrite the Aamodt Settlement was appropriated in December of 2020:

"A provision in the Consolidated Appropriations Act of 2021 signed into law by President Donald Trump includes $137 million for the Aamodt Litigation Settlement Completion. This amount raises the federal cost ceiling for the $406 million Pojoaque Basin Regional Water System project and amends the Aamodt Settlement to extend the substantial completion date of the project by four years to 2028."

This pattern of neglect has long been extant in media coverage of the controversial settlement that took 55 years to come to fruition. To understand why, we need to look back at a history that relied on paper water rights (Top of the World Farm in Taos County), the political abrogation of judicial rulings (Judge Edwin Mechem), the imposition of a water system that non-pueblo residents don't want (the Pojoaque Basin Regional Water System), the expenditure of millions of dollars of federal, state, and Santa Fe County funds to lawyers and bureaucrats to adjudicate a singularly small amount of water, and the lack of transparency and representation in settlement negotiations.

Not only does this history reveal the Aamodt Adjudication Settlement's failures but also the deeply dysfunctional adjudication process in general. With the power of the feds, the state, and Santa Fe County behind it, there wasn't much motivation to potentially derail a train carrying so much baggage.

I'll begin with the particulars of this case that governs a relatively small amount of water within the Pojoaque Valley that I think will also make clear why the Office of the State Engineer (OSE) has been incapable of completing so many adjudications in a timely fashion.

The story begins in 1997 when some of us found out that Santa Fe County had bought Top of the World Farms (TOW), in Sunshine Valley near the Colorado border, and planned to transfer those water rights to Santa Fe. The water would be diverted from the Rio Grande at San Ildefonso Pueblo, just north of Otowi Gage, and piped south to the Buckman Well Field, Santa Fe's main water source. While these water rights were not acequia water rights-TOW Farms produced many diverse crops in the 1950s and 60s with well water-they represented a breach of the de facto barrier to the transfer of water from northern New Mexico to the middle or lower basins of the Rio Grande. This would not only affect the terms of the Rio Grande Compact, which governs Rio Grande water from Colorado to Texas and Mexico, it could set a precedent for other municipalities and developers to acquire el norte water rights.

Parciantes and acequia associations came together (19 groups and individuals in total) to protest this transfer of 600 acre feet per year (afy) of water before the OSE. The rationale for the transfer rested on the supposition that if the TOW irrigation wells were retired, the aquifer water would flow to the Rio Grande and down to San Ildefonso, where it would be taken out of the river via an infiltration system. The protestants (disclosure: I was a protestant) argued that the transfer would be another straw in the surface flow of the Rio Grande and that water rights, particularly agricultural rights, should remain in their area of origin.

As the protest dragged on into the 2000s, Edwin Mechem, the sitting judge in the Aamodt Adjudication, which governs the pueblos of Pojoaque, San Ildefonso, Tesuque, Nambe, and non-pueblo water rights owners in the Pojoaque Basin, issued a ruling that limited the pueblos' water rights, without provision for future use. The political fallout was swift: then Senator Pete Domenici met with the pueblos and the Pojoaque Valley Irrigation District to convince the parties that the TOW water rights should be used for a Pojoaque Valley Regional Water System as part of a negotiated settlement of the adjudication. Non-pueblo water rights owners in the Pojoaque Valley would have to give up their wells and hook up to the delivery system. The pueblos would be guaranteed future use rights.

There was enormous opposition to this proposal-most non-pueblo residents did not want to give up their wells-and a compromise was forged that allowed voluntary rather than mandatory hook up to the system. In 2006 Santa Fe County bought an additional 1,100 afy of water rights at TOW to complete the needed water rights for the delivery system. Our protest of the TOW transfer sat in limbo until well into the 2000s as the settlement agreement was hammered out.

What has made the Aamodt Adjudication so complex-and controversial-is that it involves pueblos, which come under the jurisdiction of the federal government, while adjudications are a state process. The McCarran Act of 1952 allows tribes and pueblos to conduct adjudications in state court. Because so many parties, with different priority dates, are involved in these adjudications they usually end up in settlement negotiations (encouraged by the OSE) that are held behind closed doors. In the Aamodt settlement negotiations, parciantes and domestic water rights owners complained they were not well represented in the process and after almost 60 years many still believe they have been ill served. The very nature of an adjudication sets up an adversarial relationship between parties because of the concept of priority administration-first in time, first in line in use of the water-and implies that water is a property right instead of a shared resource, governed by the practice of repartimiento in times of drought. When people questioned the fairness-and wisdom- of guaranteeing future pueblo use rights (2,500 afy) while non-pueblo residents were limited to existing rights (750 afy), the judge who presided over the settlement negotiations said: "We're not going to sugar coat this proposal. It provides protection of your existing use, period. If you don't accept that, the Pueblos have the right to make a priority call on your water. You could lose everything."

Santa Fe County didn't apply to transfer the TOW water rights to the Pojoaque Valley for the Aamodt Settlement water delivery system until 2015. The application was actually a joint one with the Bureau of Indian Affairs, which had purchased 1,141 afy of water rights from the county on behalf of the four pueblos, while the remaining 611 afy of rights were designated for the non-pueblo water users. This time, Taos County protested the transfer, arguing it was not in the public welfare of the citizens of Taos County (our original protest then became obsolete). Public welfare is one of the three criteria upon which a water transfer protest can be based: the other two being the transfer constitutes impairment of someone else's water right or is contrary to conservation. Actually winning a case based on public welfare is an uphill battle: there has been no precedent established under that criteria and the OSE is loathe to open what it considers a Pandora's box about what exactly constitutes the public welfare. To define what the public welfare is when it comes to the movement of water would demand a broader scrutiny of transactions that are seen only through an economic lens, or what is the "highest and best use" of the water.

On July 14, 2017 the parties to the Aamodt Adjudication signed the Final Decree and Judgment: the city and county of Santa Fe, the state of New Mexico, the Bureau of the Interior, the pueblos of San Ildefonso, Nambe, Tesuque, and Pojoaque, and the U.S. District Judge. Four days later the New Mexico State Engineer denied the Taos County TOW protest. Three hundred and seventy-five water rights owners filed an appeal of the final decree in 2017 but the appeal was denied.

The Bureau of Reclamation vastly underestimated the cost of the water supply system by $193 million, thereby forcing the New Mexico congressional delegation to submit the bill just passed seeking the $137 million federally needed additional funds. The rest of the shortfall will be spread between the state and county governments: the state commitment is increased from $57 million to $100 million total; the county will be responsible for $34.4 million, with $24 of that "deferred" until Phase Three, the last phase, or build-out of the distribution lines to residences that have signed onto the system. The BOR is currently pursuing "Limited Construction" of the system, essentially the infrastructure necessary to build the collector wells at San Ildefonso. The agreement reduces the initial build-out of the system from the original 4,000 afy capacity to 2,500 afy until demand in the basin requires expansion to the full amount (water rights in addition to the TOW rights were acquired through other transfers).

Another aspect of the agreement that has stirred controversy in the non-pueblo community is that Santa Fe County may use its portion of Phase Three deterred funding to build a pipeline to send 1,000 afy of water earmarked for the non-pueblo water users in the valley to a "tee" located at the intersection of Bishop's Lodge Road and Tesuque Road that, according to Anjali Bean, Santa Fe County Aamodt Project Manager, will "serve future users in the Valley [and] allow for temporary interim use outside the Valley until demand in the Valley requires the County's full allocation."

Many of non-pueblo water rights owners question whether Phase Three will actually be achieved. Deven Bent, a water rights owner who hosts the Pojoaque and Española Valleys Forum on Facebook, believes that by the deadline of 2028 "the only County distribution lines completed will be those that can be laid in the same ditch as the transmission lines. No new pueblo distribution lines will have been built. Essentially, in 2028 you will have a system of transmission lines to deliver water to existing Pueblo distribution systems and to the Santa Fe developers. For the majority of non-Pueblo residents, even those who want to hook up in 2028, it will not be possible to hook up-for the overwhelming majority, there will be no distribution line to hook to." He also points out that almost half of the Pojoaque Basin's population is left out of the service area and that most of those who do live within the service are expected to keep their wells.

Back in 2015 I wrote an article in La Jicarita called "New Mexico Water Adjudications: Oh What a Tangled Web We Weave," in which Third District Judge James Wechsler invited the OSE legal team to report on its progress regarding the adjudications over which he presides-San Juan, Pecos, Rio San Jose, and Santa Fe River-as well as the Lower Rio Grande Adjudication in the south and the long-standing ones in the north-Aamodt, Abeyta (Taos), Jemez, and Chama. As I stated in the article, "it wasn't pretty." The OSE complained they didn't have the resources to finish adjudications in a timely manner and the judge complained that there seemed to be no consistent pattern in how the agency established priority and procedure. As Colorado College professor Eric Perramond states in his book Unsettled Waters: Rights, Law, and Identity in the American West, "What is stunning about the Aamodt and the Abeyta [Taos Pueblo] cases is how little water was involved overall given the decades of time and resources spent. The quantities bickered over, litigated, and finally settled for pale in comparison to what awaits when the state decides to address the water rights of the Albuquerque and Middle Rio Grande region."

But as these adjudications slowly wend their way through the courts or in settlement hearings, there seems to be little acknowledgment, by either the parties or the courts, that water being assigned to each river system is not only "paper water," meaning theoretical water rights based on historical or potential beneficial use, but may not exist at all. After the excruciating drought we experienced last year, where water managers had to release emergency flows from the upper watershed reservoirs to keep farmers alive down south, and the forecast of increased climate change disruption to our water supply, one would hope that future adjudications will incorporate these factors into their court decrees or settlements. The Aamodt is signed and sealed but it remains to be seen if it will be delivered.
Editor's note: Kay Matthews is the editor of the online La Jicarita, (www.lajicarita.wordpress.com), an online magazine of environmental politics in New Mexico. She is the author of "!No Se Vende! Water as a Right of the Commons", which is available at her website (https://acequiamadrepress9000521.wordpress.com/orders/).

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Kay Matthews: Aamodt Settlement - Signed And Sealed But Not Delivered

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BY KAY MATTHEWSEditor of La Jicarita Maire O'Neill of the Los Alamos Reporter seems to be the only local reporter who bothered to let people know that the additional funding sought by the New Mexico congressional delegation to underwrite the Aamodt Settlement was appropriated in December of 2020: "A provision in the Consolidated Appropriations Act...

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"Rivers Through the Lens of Pueblo Feminism"

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"Rivers Through the Lens of Pueblo Feminism"

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This video features an activist from the Sandia Pueblo who describes the special relationship between Pueblo women and the Rio Grande in Pueblo culture.

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New Mexico In Focus, a Production of NMPBS

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Rivers Through the Lens of Pueblo Feminism | Our Land

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"Our Land: Pueblo of Santa Ana Works to Restore Habitat & Bring Back Wildlife"

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"Our Land: Pueblo of Santa Ana Works to Restore Habitat & Bring Back Wildlife"

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This video features the governor of the Santa Ana Pueblo, who discusses the cultural importance of the Rio Grande and indigenous conservation efforts in the area.

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New Mexico In Focus, a Production of NMPBS

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Episode 1110 | Our Land: Pueblo Of Santa Ana Works To Restore Habitat & Bring Back Wildlife

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This video features a Tesuque Pueblo elder who describes the importance of the Rio Grande to Pueblo culture.

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"Future Precipitation Scenarios, 2080-2099, compared to 1961-1979"

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"Future Precipitation Scenarios, 2080-2099, compared to 1961-1979"

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This graphic shows how precipitation is forecasted to drop significantly in the late 21st century as the effects of climate change continue.

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gov Science & information for a climate-smart nation

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"Water Storage in Elephant Butte Reservoir (1915-2010)"

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"Water Storage in Elephant Butte Reservoir (1915-2010)"

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This graphic shows the deep drop in water storage at a Rio Grande reservoir over the past 20 years

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gov Science & information for a climate-smart nation

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This article provides scientific background information on the drying of the Rio Grande

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This article is the first in a 2-part series about water, climate, and agriculture in New Mexico's Lower Rio Grande Valley. Part 2 is about the costs of drought for farmers in the region.
On a mid-July afternoon, ditch riders-men patrolling irrigation channels-twisted open steel gates cut into concrete waterways in New Mexico's Lower Rio Grande River Valley, bathing pecan orchards in water and nurturing vibrant chile plants. At first sight, all seemed a healthy, hydrated green. Hours later, however, I stood on a bluff overlooking Elephant Butte Reservoir, my eyes tracing the bleached rocks that once marked the high water.
(5 min, 55 sec) Watch a video version of this story. Courtesy Zack Guido, Climate Assessment for the Southwest.
"It's been a long time since water spilled over the dam," said James Powell, Operations Manager for Elephant Butte Reservoir-water that irrigates about 90,000 acres of farmland in New Mexico and provides half the water supply of El Paso, Texas. "The reservoir is dropping about 2.5 feet per day," he continued. "It will probably fall another 20 feet before we stop releasing water in late August of early September."

Amid a decade-long drought, water storage on the Rio Grande in New Mexico has plummeted. In coming weeks, Elephant Butte is expected to dip to five percent of capacity; all stored water designated for farming and urban needs will be completely exhausted, according to the Bureau of Reclamation.

Until a string of wet years restocks the reservoirs, agricultural producers and urban residents will have to make do with whatever flows through the rivers and make up shortfalls with groundwater, an expensive and potentially unsustainable practice that is spurring novel efforts to corral monsoon rains in order to boost supplies.

On the Rio Grande-historically the wellspring for more than five million people in Colorado, New Mexico, Texas, and Mexico-coping with scarcity has become a reality, and water management and use in the region may be a leading example of how to adapt to drier times.

Water Use

The Rio Grande flows about 1,800 miles from the peaks of southern Colorado to the Gulf of Mexico, forming a long stretch of the international border between the United States and Mexico. People use the water for different things along different stretches of the river. In northern New Mexico, Rio Grande water supplies a substantial portion of urban water needs for Albuquerque, while irrigation draws the most water in the middle and southern parts of the watershed in the state.

Managed by the U.S. Bureau of Reclamation, Elephant Butte is New Mexico's largest reservoir on the Rio Grande, with a capacity of about 2 million acre-feet of water. (An acre-foot covers one acre of land in one foot of water and satisfies, on average, the annual water needs of about eight Albuquerque residents.) About 25 miles down river, Caballo Reservoir can impound an additional 350,000 acre-feet. In a good year, these reservoirs together release about 790,000 acre-feet; 416,000 is allocated to the Elephant Butte Irrigation District in southern New Mexico, and 314,000 and 60,000 acre-feet are passed to Texas and Mexico, respectively.

When flows in the river and storage in Elephant Butte and Caballo reservoirs are sufficient, the district doles out a full irrigation allotment of 3 feet of water per acre of land. In some years, they've allocated more; recently, allocation has been a lot less.

"In about 1979, we began a 24-year full-supply of surface water," said Gary Esslinger, director of the Elephant Butte Irrigation District. "We had plenty of snowpack runoff. The lakes were full. We were just over our heads in surface water."

In 2003, drought set in. It was a wake-up call, Esslinger said.

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Streamflow in the headwaters above Del Norte, Colorado, where most of the water in the Rio Grande originates, has been declining over the long term. In the last 110 years, the Rio Grande has been ferrying about 14,000 acre-feet less per decade, according to the U.S. Geological Survey. In the past decade, dry conditions have been acute. Since 2002, precipitation has been about 83 percent of the historical average with rain and snow falling below average in eight of the last 10 years.

It's been the driest decade since the 1950s and early 1960s. The low flows have caused storage in Elephant Butte to tank, leaving little water for farmers. This year, the district was able to allocate just 10 inches per acre; last year it was only 4 inches. Since 2003, they have doled out a full allotment only once, in 2008.

"In terms of releasable water, we will be down to zero [by the end of the irrigation season]," said Phil King, a professor of civil engineering at New Mexico State University who serves as a consultant for the Elephant Butte Irrigation District.

But while the recent dry spell has been severe, it is not unusual for the Southwest. Researchers at the University of Arizona used tree rings to recreate streamflows at Otowi Bridge, about 60 miles north of Albuquerque, for the years 1450-2002. This 552-year record shows five 10-year periods in which flows were less than the lowest historical values measured by stream gauges. The most persistent drought occurred in the late 1800s, when flows measured 73 percent of average during an 11-year period.

In other words, the 20th century-especially the wet period near the end-is not representative of streamflow variability in the Rio Grande, said Connie Woodhouse, professor at the University of Arizona's School of Geography. Woodhouse is one of the scientists who analyzed the tree rings to reconstruct the 500-year history of Rio Grande streamflows. "We have longer droughts and more severe [lower] flows reconstructed," she said.

The record is a warning: the severity, frequency, and duration of naturally occurring droughts in the Rio Grande watershed may exceed those of recent years. That could mean greater challenges for water management than those the region has faced in recent years.

Adapting to Drought

In many places in the Lower Rio Grande, groundwater has been the saving grace during the last dry 10 years. Farmers and urban water managers have supplemented meager surface water allotments by ramping up pumping, but it's not a fail-safe strategy. The groundwater and river are tethered to each other so that declines in the Rio Grande reduce infiltration-water seeping through the topsoil and porous rocks into aquifers. It's a connected system recharge.

"The groundwater is hydrologically connected to the river. It's not magically making water; it's really borrowing it from future water supplies," King said.

While groundwater reserves are currently ample, those supplies may eventually run dry if projections from climate models come to pass. The U.S. Global Climate Research Program, for example, concluded in a 2009 assessment report that the Southwest will likely experience increased water scarcity as a result of the combined impacts of projected temperature increases and substantial reductions in rain and snowfall in the spring months.

The prospect of these changes has caught the attention of water managers. "The greatest uncertainty is the changes that are coming with climate change," said Filiberto Cortez, manager of the Bureau of Reclamation's El Paso Field Division.

Developing safeguards against future change also has immediate payoffs. Pumping groundwater, for example, costs more than using river water, and the water is also saltier, which over time can lower crop yields. These downsides have led the Elephant Butte Irrigation District to explore new strategies to boost supply, including capturing monsoon torrents by building earthen structures that funnel water spilling from drainages into irrigation canals.

"We've been really intense in developing a stormwater management plan to capture the water and use it to recharge our aquifer," Esslinger said.

Capturing monsoon precipitation, however, cannot completely compensate for reductions in streamflow experienced in the recent decade, King said. Other changes also are likely needed.

"Farming will adapt," King said. "I think what you will see is a change in the crop types. Probably, [farmers will] concentrate what little water there is on smaller acreage and grow higher value crops."

Esslinger agrees. "Farmers here are very progressive, very innovative," he said. "Garlic and things that we've never thought of may be grown here and may be a new source of agriculture."
For more information: Coping with Drought on the Rio Grande Climate Assessment for the Southwest Global Climate Change Impacts in the United States (2009) TreeFlow: streamflow reconstructions from tree rings

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On the Rio Grande-historically the wellspring for more than five million people in Colorado, New Mexico, Texas, and Mexico-coping with scarcity has become a reality, and water management and use in the region may be a leading example of how to adapt to drier times

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"Aamodt Water-Rights Case Adjourned After 51 Years"

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"Aamodt Water-Rights Case Adjourned After 51 Years"

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This news article focuses on the adjournment of the Aamodt water case and the persisting challenges that go on after the closure of the case.

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More than a half-century after the water-rights complaint was filed by the state engineer, on April 20, 1966, a federal judge on Friday brought to an end the adjudication of the state's so-called Aamodt case, said to be the third-longest federal case in U.S. history.

Named after R. Lee Aamodt, a landowner and Los Alamos scientist who was the first of more than 1,000 defendants listed in the lawsuit, the Aamodt case has roiled residents of the Pojoaque Basin north of Santa Fe for decades, as local, tribal, state and federal officials have painstakingly worked to resolve a dispute over water ownership.

A settlement first reached in 2006 and approved by the court last year establishes high-priority water rights for four pueblos in basin - Nambe, Pojoaque, San Ildefonso and Tesuque - allowing them to draw 2,500 acre-feet annually, while nontribal residents are allocated 1,500 acre-feet. The deal calls for a multimillion-dollar regional water system, but it allows nontribal residents to opt to continue pumping limited amounts of water from wells they have been using for decades.

Moments after U.S. District Court Judge William P. Johnson affixed his signature to a final judgment and decree, and declared the case adjourned, applause rang out in the almost-full Santa Fe federal courtroom. Santa Fe County and pueblo officials, alongside attorneys for the state and the U.S. government, exchanged handshakes, hugs and congratulations.

Many remarked on the significance of a day some people involved in the case did not live to see - including Aamodt.

Several attorneys made a point in their remarks before Johnson to mention their age at the time the case was filed. None was much older than a toddler.

Friday's decree marked a major milestone in the 51-year-old case - but it might not be the capstone. Appeals loom, and some funding for the regional water system, estimated to cost $253 million, remains contingent on a resolution to road disputes between the county and the pueblos.

The pueblos say some county roadways infringe on their land. Homeowners say the lack of clarity on rights of way is clouding the titles to their properties and threatens block access to their homes, and the county has said it will not appropriate its share of the water system funds until the disputes are resolved.

Tribal, county and federal officials gathered for closed-door meetings Thursday and Friday at the Capitol to discuss the issues.

Meanwhile, the U.S. Bureau of Reclamation plans to begin construction of the water system next summer.

Outside the courthouse Friday, nearly a dozen residents of the basin who have long opposed the settlement protested peacefully, holding signs - reading, among other things, "We need access to our homes" - and chatting about the road disputes.

Johnson openly addressed the possibility of appeals in the case. "There are parties who have been ruled against, and this is an important day for those aggrieved parties," he said.

"There is a group of judges in Denver, and they will not hesitate to tell me if they think I'm wrong," he added, referring to the U.S. Court of Appeals for the 10th Circuit.

Still, the mood in the courtroom was celebratory. "It's an amazing thing to see," said Pojoaque Pueblo Gov. Joseph Talachy after the decree had been signed.

Santa Fe County Manager Katherine Miller called the decree "monumental."

"As you listen to the history of the case and everyone who's been involved, it's really a phenomenal event, and quite a feat to get here," Miller said.

In a hearing that seemed at times more like a graduation ceremony, Johnson credited the numerous judges, attorneys, special masters, clerks, staffers and others who had worked on the complex and contentious case since it was filed by then-State Engineer Steve Reynolds, who sought to resolve water rights within the basin.

Calling himself "the new kid on the block," Johnson briefly memorialized the judges who had worked the case before it was assigned to him in 2014. He highlighted in particular Judge Martha A. Vázquez, his immediate predecessor, who recused herself when her husband, Joseph Maestas, became a member of the Santa Fe City Council.

Other judges who once handled the case include H. Vearle Payne, who Johnson said was the last federal judge to have never graduated from law school, and Edwin Mechem, also a U.S. senator and multiterm governor. Referring to these judges, both of whom have since died, Johnson quipped, "I made comments to my staff that I intended to see this through before I passed."

The remark drew a round of laughter from the courthouse crowd.

Those protesting outside were not quite so enthused. Many said they were displeased that officials had been meeting in secret to discuss the roadway disputes. State Rep. Carl Trujillo, D-Santa Fe, a party in the Aamodt lawsuit, attempted to attend the meetings Thursday but was asked to leave.

"We don't have any representation in there," said Diane Quintana, a Nambé resident. "This is our government building. We should have a right to hear the discussions that affect our property."

John Gutting of Pojoaque said area residents opposed to the settlement must now decide how they want to proceed in the case.

"Are we more aggressive, or do we let it go from here?" Gutting said. "The big thing is, we don't have the road easements. ... If we can't get to our homes, what good is a $300 million water system going to do?"

Editor's note: The New Mexican owner Robin Martin is party to the Aamodt litigation.

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Aamodt water-rights case adjourned after 51 years

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More than a half-century after the water-rights complaint was filed by the state engineer, on April 20, 1966, a federal judge on Friday brought to an end the adjudication of the state's so-called Aamodt case, said to be the third-longest federal case in U.S. history. Named after R.

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"American Indian Water Right Settlements"

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"American Indian Water Right Settlements"

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This article highlights the legal frameworks that govern indigenous access to water and the challenges that these frameworks pose to indigenous communities, including Pueblos.

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"Pueblo Indian Water Rights: Charting the Unknown"

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"Pueblo Indian Water Rights: Charting the Unknown"

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This article tracks the long history of the New Mexico v. Aamodt court case, which persisted for over 50 years, and led to a still-contested water rights settlement to guarantee water rights to Pueblo communities.

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"Working with Native Americans on Water Issues."

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"Working with Native Americans on Water Issues."

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This article introduces the Winters Doctrine and non-Winters water rights settlements for indigenous communities who do not live on federal reservations.

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"Land, Water, and Pueblo-Hispanic Relations in Northern New Mexico"

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"Land, Water, and Pueblo-Hispanic Relations in Northern New Mexico"

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This article describes the history of Pueblo communities and their relationships with European settlers in the Southwest. It focuses particularly on Pueblo and settler approaches to water sharing and usage.

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"Through the Taos Pueblo Lens: Values and Emerging Strategies for Protecting Wild Lands and Waters"

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"Through the Taos Pueblo Lens: Values and Emerging Strategies for Protecting Wild Lands and Waters"

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This case study analyzes the cultural lifeways of a Pueblo community - the Taos Pueblo - and their connections to natural resources like the Rio Grande

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Authors: Linda Moon Stumpff

Disciplines: Environmental Studies, History, Law, Native American Studies, Political Science and Public Administration, Sociology

Themes: Cultural Preservation, Environmental Justice, Federal and State Relations and Policy, Intergovernmental Relations, Land, Leadership, Self Determination and Self Governance, Treaty Rights and Sovereignty

This case raises questions about how communities make choices through their governance systems about what institutions and actions best help them achieve goals to restore culture and traditional lifeways. The emphasis here is on non-economic relationships to wilderness, water and culture. The return of Blue Lake to Taos Pueblo years after it was incorporated into public lands as part of a National Forest is an extraordinary event that was accompanied by an extraordinary strategic process carried out by Taos Pueblo. Historically, especially after the infusion of funds for HUD and other social programs occurred during the 1960's, people looked to tribal governments to provide for them, opening the valves for these monetary infusions and solving a great range of problems. But could money solve all the problems? This case raises a number of questions for critical thinking about cultural preservation, monetary, and non-monetary values.

Documents

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Through the Taos Pueblo Lens: Values and Emerging Strategies for Protecting Wild Lands and Waters

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Authors: Linda Moon Stumpff Disciplines: Environmental Studies, History, Law, Native American Studies, Political Science and Public Administration, Sociology Themes: Cultural Preservation, Environmental Justice, Federal and State Relations and Policy, Intergovernmental Relations, Land, Leadership, Self Determination and Self Governance, Treaty Rights and Sovereignty This case raises questions about how communities make choices through their governance systems about what institutions and actions best help them achieve goals to restore culture and traditional lifeways.

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"The Rio Grande: Rethinking Rivers in the 21st Century"

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"The Rio Grande: Rethinking Rivers in the 21st Century"

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This report assesses the state of water conservation in the Rio Grande basin, as well as the history of human impact on the river.

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"A River Runs Dry: Climate Change Offers Opportunity to Rethink Water Management on the Rio Grande"

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"A River Runs Dry: Climate Change Offers Opportunity to Rethink Water Management on the Rio Grande"

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This article demonstrates current effects of climate change on the Rio Grande, such as extensive river drying in 2020.

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Rio Grande (CC BY 2.0) by City of Albuquerque

Albuquerque residents coping with the COVID-19 pandemic have flocked to the Rio Grande this spring and summer in droves, said John Fleck, director of the Water Resources Program at the University of New Mexico.

"What we're seeing in Albuquerque is stunning. People are in the river in ways that we've never seen before," Fleck told NM Political Report. "People are out wading in the river, splashing around, playing, setting up family picnics on the emerging sand banks."

That fun may soon come to an abrupt end. For the first time in decades, Albuquerque is facing a dry Rio Grande. Despite a nearly-normal snowpack over the winter, that water never made it down into the river this year. Instead, water managers had to release stored water from reservoirs to keep the Rio Grande flowing. Those stores are running out, and some 28 miles of the river south of Albuquerque has already gone dry.

"We're going to have a flat sandy dry riverbed with a little ribbon of water meandering through the sand very soon," Fleck said.

It's not unusual for stretches of the river, especially south of Albuquerque, to go dry in summer months. But as temperatures rise due to climate change, and the region's climate becomes more arid, it's likely that we'll see more and more dry years for the river, even if snowpacks remain at near normal levels.

The Rio Grande is a highly managed river. The water that flows into and is diverted out of it is governed by the Rio Grande Compact of 1938, which dictates how water is managed and distributed between various communities across Colorado, New Mexico, Texas and Mexico.

In New Mexico, every drop of water that flows through the river is owed to someone. And while the Compact itself is designed to accommodate wetter and drier years, the state has very little wiggle room in how it manages that water in the face of a large, system-scale shift in climate, like we're beginning to experience now.

Some say now's the perfect time to rethink water management on the Rio Grande.

"This is not going to work, going forward," said Jen Pelz, a biologist, attorney and Wild Rivers Program Director at WildEarth Guardians. "Communities, as well as the river itself, are going to be in great danger if we keep operating on a year-to-year basis, praying for rain and hoping we're going to have another 1980. That's not going to happen under the new climate regime."

New Mexico is already using more water than it has access to

The Rio Grande Compact is a complex interstate legal agreement between governments and districts that rely on the Rio Grande to supply drinking water and irrigation water to their respective communities. Under the pact, Colorado delivers each year a certain amount of water to New Mexico, and New Mexico, in turn, is required to deliver a certain amount of water to the Elephant Butte Reservoir. That water is then distributed to irrigators in New Mexico and Texas south of the reservoir.

The delivery obligations are based on the amount of precipitation received each year. In dry years, New Mexico has lower delivery obligations to the reservoir, and in wet years, the state has higher delivery obligations. Mike Hamman, CEO and chief engineer of the Middle Rio Grande Conservancy District, said the Compact was designed with an eye towards the boom and bust water cycle of the Rio Grande.

"The states that are in the Rio Grande Compact have designed and developed whole operating procedures around wide swings in water supply," Hamman told NM Political Report. "The Compact is scaled to try to encompass that as best as it can, it functions reasonably well since its inception."

This chart, taken from the Interstate Stream Commission's June 16 2020 meeting packet, shows New Mexico's compliance with the Rio Grande Compact from 1940-2019. Source: New Mexico Interstate Stream Commission.

New Mexico is already out of step with its water supply as determined by the Compact. A 2004 study commissioned by the Interstate Stream Commission (ISC) and the U.S. Army Corps of Engineers offered a first thorough look at the state's water budget since the 1930s. The study found that, given average water flows and average water depletions, New Mexico is short 40,000 acre feet of water each year, on average.

"If you add everything up, according to this study, our uses of the river, plus natural uses that we're responsible for under the Compact accounting, exceed the average supply by 40,000 acre feet per year," said Norm Gaume, a retired licensed professional water engineer who formerly served as director of the ISC. Gaume commissioned the study in the 1990s, though it was published after his tenure at the ISC.

"Our uses of water, on average, exceed our average supply. Not in the future, because of climate change, but [in 2004]," he said.

The study has never been updated, but there's some hope that the state's water use has actually decreased in the interim - even if just slightly - thanks to the water conservation efforts in the cities of Santa Fe and Albuquerque, the Rio Grande's two largest municipal water users.

"They've been very, very successful in their water conservation programs, so their per-capita use is going way down," said Fleck. He added that the acreage of irrigated land in the Middle Rio Grande is also declining, which may translate into some smaller water savings.

Pelz commended water conservation progress, but noted that even in wet years, the water budget shortfall can be seen in some stretches of the river in southern New Mexico

"Last year, when the river was flush with water because it was an above-average water year, the river still went dry in the San Acacia reach, below the San Acacia diversion dam," Pelz said. "That's because we've over-allocated our system, and we're not doing anything to protect the right of the river to have any water."

Responding to climate change

Meanwhile, climate change is shifting how the region experiences precipitation. And that, water managers say, will likely impact New Mexico's water future and its ability to meet its delivery obligations year to year.

"We're entering a period now where there's a shift in temperatures and precipitation as a result of the climatic changes going on. That can definitely be a compounding factor," Hamman said. "It creates higher demand for existing crops and vegetation, as well as changes the way snowmelt accumulates and runs off. It's not only affecting the volumes, it's affecting the timing. That's a little different than what we have historically experienced."

Hamman said the Middle Rio Grande Conservancy District began implementing what he called adaptation strategies since the mid-1990s. Those include minimizing diversions, maximizing storage and optimizing what water is in the river.

"There's a bunch of different pieces to that puzzle that we're working on already," Hamman said.

But a significant amount of the state's water budget cannot be controlled by water management. Looking back to the 2004 study, Gaume pointed out that nearly half of Rio Grande water depletion is caused by evaporation and other natural mechanisms, not human activity.

"The natural depletions are not very controllable, and they keep going, even if we don't have much flow going in," he said.

This chart, from the 2004 Middle Rio Grande Water Supply Study, shows how much water is lost to natural depletions (to things like evaporation and riparian habitats) and human-caused activities such as agricultural.

Climate change and aridification will likely cause these natural depletions to increase, the effects of which will ripple throughout the communities that rely on water from the Rio Grande.

"What happens when temperatures go up? Evaporation goes up even faster - much faster than temperature, it's not a linear function at all," Gaume said. "So reservoir evaporation is going to go way up, evaporation from the bosque and the river is going to go up. We're not sure what's going to happen to our supply, but what we do know is that our net supplies are going to go down, because evaporation losses are going to go up."

What kind of future for the Rio Grande do we want?

Water experts agree there are big conversations to be had around what kind of future New Mexico residents want for the Rio Grande. But experts also agree those conversations haven't happened yet.

"This is a values question. What does the community value?," Fleck said. "We do not have in the Middle Rio Grande Valley a management framework where we can even have those conversations about what our community values are. What do we want that river to look like?"

Pelz and WildEarth Guardians have a few ideas. Pelz authored a 2017 report that looked at what she called out-of-the-box thinking about water management on the Rio Grande. It proposes exploring whole-basin approaches to managing the river, rather than the piecemeal management structure that currently exists.

"We've been advocating for a long time to have the National Academy of Sciences study this idea - have [people] who don't have an interest in the basin, who are scientists, look at all the different reservoir authorizations, and the Compact, to see if there are better ways we could operate reservoirs that would help make sure farmers got delivered water, also make sure that there's water in the river when the environment and species need the water, communities could ensure they have water when they need it. That's more of a long-term solution," she said. "These three states have three different laws around allocating water. If the whole basin were managed together, it'd probably be a different story."

Altering the state's Rio Grande water management would require renegotiating parts of the Rio Grande Compact, which is something that all three states would need to agree to do. At present, there doesn't seem to be much support for considering renegotiating any parts of the Compact among the parties.

In an email to NM Political Report, Office of the State Engineer spokesperson Kristina Eckhart said New Mexico isn't interested in opening up negotiations, given the current litigation between the state and Texas over water.

"Texas mediated a 2008 agreement in the Lower Rio Grande that takes water apportioned to New Mexico by the Compact away from New Mexico, and then in 2013 sued New Mexico in the U.S. Supreme Court claiming Texas is being harmed. Given those actions, New Mexico sees no reason to renegotiate the Compact at this time," Eckhart said. She added that there's currently no drought contingency planning occurring, either.

The U.S. Bureau of Reclamation has just begun work on a Rio Grande River Basin study in New Mexico, which will include "projections and water supply and demand within the basin and analysis of how existing water and power infrastructure and operations will perform in the face of changing water realities," said Mary Carlson, a spokesperson for the Bureau.

The Bureau partnered with the Middle Rio Grande Conservancy District, the ABCWUA, the New Mexico Interstate Stream Commission, as well as tribes, environmental organizations, educational institutions, and community organizations for that study.

The Bureau is also working with the ISC "on the development of forecasting tools to help better project delivery requirements under the Compact, to improve decision-making related to how much water to store upstream, and how much to send down to Elephant Butte for Compact delivery," she said.

Could the basin study open up an opportunity for the three states to consider coming back to the negotiating table to deal with climate change in the future?

"Potentially," Hamman said, adding that there are some other aspects of the Compact that need consideration, too.

"There are some definite reservoir regulation issues that need to be looked at, and maybe a whole different idea of net precipitation, if it's moving towards more of a monsoon-driven system, then a snow melt system, a lot of those kinds of things need to be looked at," he said. "Once those options are developed, then I think the interest of the other Compact states would increase."

In the meantime, New Mexicans will have to make do with a sandy Rio Grande this year.

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A river runs dry: Climate change offers opportunity to rethink water management on the Rio Grande

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Albuquerque residents coping with the COVID-19 pandemic have flocked to the Rio Grande this spring and summer in droves, said John Fleck, director of the Water Resources Program at the University of New Mexico. "What we're seeing in Albuquerque is stunning. People are in the river in ways that we've never seen before," Fleck told [...]

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"Water Governance Challenges in New Mexico's Middle Rio Grande Valley: A Resilience Assessment"

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"Water Governance Challenges in New Mexico's Middle Rio Grande Valley: A Resilience Assessment"

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This article utilizes a social ecological system framework to assess the environmental resilience of the Rio Grande. It highlights the challenges to the river posed by climate change.