Conference Note: Congreso de Acequias

CONGRESO DE ACEQUIAS
San Luis, Colorado October 19-21, 2012

Recognizing Regional Challenges: The Colorado Acequia Story

The Sangre de Cristo Acequia Association (www.sangreacequias.com) held the first Annual Congreso de Acequias (“Congreso”) in San Luis, Colorado.  The purpose of the Congreso was to create a forum for water users who irrigate using the acequia method in order to identify strategies protective of acequias based on H.B. 09-1233, 67th Gen. Assemb., 1st Reg. Sess. (Colo. 1999), codified in Colo. Rev. Stat. § 7-42-101.5 (2009) (“Acequia Recognition Law”).  The acequia irrigators who attended were from the same four counties as named in the statute: Conejos, Costilla, Huerfano, and Las Animas.  The Congreso was inclusive of all persons who irrigate with the acequia method in these counties, regardless of individual farmers’ self-identified irrigating method.

An acequia is a gravity fed, earthen ditch irrigation system used to carry snowmelt and rainwater run-off from arid canyons of mountainous areas to agricultural fields. The acequia method is intertwined with the land and its geography; therefore the method is prevalent in the four Colorado counties mentioned in the Acequia Recognition Law, and large parts of New Mexico.  Unlike New Mexico, however, Colorado never recognized acequia irrigating as a distinct use, and Colorado’s prior appropriation system does not protect acequias.  Because water and land use are intertwined, the Congreso discussions included challenges each county’s culture faces in attempting to maintain traditional knowledge of the land and water used within each community.

Conejos County: Lawrence D. Gallegos

Lawrence Gallegos (“ L. Gallegos”) introduced himself as a fifth generation acequia farmer whose family hales from Taos, NM.  Stating that the greatest method of protecting water rights, hence protecting an acequia, is derived from a land grant patented by Congress, L. Gallegos gave a brief history of the land grant in Conejos County.

L. Gallegos explained in 1842 the Mexican government created the Mercedes and Conejos land grants, as well as the Sangre de Cristo, St. Vrain, and other grants recognized in Colorado today, in opposition to the United States’ policy of Manifest Destiny  (a 19th Century belief that the United States was destined to expand its territory in America).

L. Gallegos further explained that in 1848, the United States created the Surveyor General’s office to adjudicate land grants.  The grantees of the Conejos Land Grant made an application in 1861 to have their land grant patented, but did not receive due process.  The grantees made another application for a land grant patent in 1898, and the case was heard in 1902, when the United States Supreme Court denied both applications for a patent on the Conejos Land Grant. L. Gallegos said, based on the transcripts from the trial, it was the government’s fault that Conejos County did not have a land grant patented by the United States because it misplaced the paperwork and did not accept verbal testimony, including the testimony of Narciso Beaubien, as conclusive evidence on the record.  To the acequias in Conejos County, this is a travesty.  Nevertheless, L. Gallegos is hopeful that the paperwork evidencing the land grant will surface in the future.

L. Gallegos asserted the acequias along the Conejos, San Antonio, and Los Pinos rivers were the first acequias in the Colorado Territory.  Although it is undisputed that the San Luis Peoples Ditch is the oldest adjudicated ditch in the State of Colorado, (dating to a decree of October 22, 1883) the first appropriation date known was March of 1855 in the little community of Guadalupe.  Regardless, the 1855 water rights owners sold all of the water from that adjudication away from the land.  L. Gallegos stated that farmers on his ditch, the third highest priority right, have kept their rights and would like to keep them.

L. Gallegos said the problems Conejos county acequias face today stem from the enactment of the Rio Grande Compact of 1938 (“Compact”).  Colorado, New Mexico, and Texas, created the Compact to provide for delivery of a specific amount of water at each upstream party’s border.  The Colorado State Engineer’s Office (“SEO”) determined there were enough flows in the rivers in Conejos County to not curtail any acequias to satisfy the compact. Between the 1950s and the 1980s after the states negotiated the Compact, the SEO allowed thousands of non-acequia farmers to drill irrigation wells.  L. Gallegos noted these “high capacity irrigation wells” in the San Luis Valley near Conejos lowered the water table enough to affect the surface waters in the area.  This resulted in a lack of return flows, said L. Gallegos, which injures the acequias.  To compound the issue, by the mid-1960s, Colorado fell almost 1 million acre-feet behind on the Compact.  Beginning in 1969, these problems resulted in the SEO curtailing acequias to help provide enough water to downstream states to satisfy the Compact.

In closing, L. Gallegos stated that the passage of Senate Bill 422 (“SB 422”) in 2004 created an opportunity to create sub districts, which could assist with the problem.  Based on SB 422, the SEO, in 2012, set up a water management plan to mitigate surface depletions based on groundwater withdrawal.  L. Gallegos stated that despite this progress, today the underlying aquifer is 1.2 million acre-feet below the Compact’s “zero point,” and there is no sign of a decrease in water mining.  Therefore, Conejos County acequia farmers face serious and imminent water shortages.

Costilla County: Joseph Gallegos, Costilla County Commissioner

Joseph Gallegos (“J. Gallegos”) introduced the issues in Costilla County with a short discussion on the geographical differences between Conejos and Costilla County.  The Culebra watershed in Costilla County is a steeper, shorter watershed than the nearby Conejos watershed, which requires that the water be put to use quickly.  It also is not subject to the Compact because the land was patented under the Sangre de Cristo Land Grant. J. Gallegos returned to his acequia community in 1986 and returned to the problems prevalent for his acequia.

J. Gallegos remembered turning a head gate on to water the family garden as a child, as he saw his father do, and got in trouble with his father for playing with the water.  That taught him how serious the business of water is.

When J. Gallegos rejoined his community, it just finished litigation opposing an industrial user trying to purchase water rights to supply, via the San Marcos Pipeline, a coal slurry in Texas.  Following litigation, the SEO began abandonment proceedings against acequia farmers in the Culebra watershed.  In reaction, the “acequieros” (acequia farmers) formed the Costilla County Conservancy District in the 1970s.

J. Gallegos recognized environmental issues, which continue to affect the Costilla County acequias today, also began in the 1970s.  Colorado passed a law in the 1970s that allowed developers to subdivide land into 5-acre parcels.  This intensive land use increased sediment load and water pollution in the acequia.

In the 1980s, a mining company posed a serious threat to Costilla County acequia farmers’ water quantity and quality.  As a result, J. Gallegos stated, the acequieros learned more about different parts of Colorado’s prior appropriation laws than ever before, including augmentation, point of diversion changes, substitute water supply plans, etc.  Furthermore, an “old timer” told J. Gallegos augmentation is “un palabra hecho a los ladrones” – a word made by crooks.

In the 1990s, a logging company damaged the Culebra watershed by stripping La Sierra of its trees while telling acequieros the logging company was practicing better land management than the acequieros.

The acequia farmers in Costilla County want to see water quality become an element of Colorado’s statutory water scheme because poor water quality injures an acequia farmer’s ability to irrigate.  When the acequieros try to argue water quality in court, their arguments are not heard because it is irrelevant.

J. Gallegos said water impoundment by “outsiders” moving into the community is another issue the community fights against.  He feels this problem will only grow as the community faces an influx of people unfamiliar with prior appropriation and the acequia method.

J. Gallegos believes that legal battles and lawyers are not the answer to the issues facing acequias in Costilla County.  In fact, the Sangre de Cristo acequia farmers try to mediate to avoid litigation.  They do not like the legal system because paying lawyers and court fees, and losing water anyway, siphons precious resources out of the community.  Therefore, the farmers formed the Sangre de Cristo Acequia Association, a 501(c)(3) (their website iswww.sangreacequias.org) to serve as a community resource.  J. Gallegos described acequia life not as socialism, but as a community that shares a resource.  They exist, J.Gallegos stated, not because there is money, but because they band together, keep everything “in-house,” and have social mores to enforce their rules.  After decades of acequia farming, J. Gallegos stated he appreciates the sustainable method of acequia farming, and celebrates the natural, sustainable environment his community is.

Las Animas County: Jack Chavez

Mr. Jack Chavez (“Chavez”) claimed it is sad that a police officer can pull a person over on any dirt road, or in any county, and look up that person’s history and know the person’s mother’s name, but farmers cannot find information about their water rights.

Chavez asserted that greed is the motivating factor for adverse affects on Las Animas acequias. Chavez said the CF Mining Company picked up the Maxwell Land Grant, which injected big money into water appropriation in Las Animas County.  He explained after this happened, the mining company and other industrial users cloaked their water rights in secrecy in order to maintain control of them.  Therefore, no acequia farmers know what their water rights are in Las Animas County.

Chavez explained that when a single farmer sells a water right, it hurts the entire community because acequia farmers flood irrigate based on the amount of time it takes to draw a certain volume of water.  Flood irrigation requires additional water in the ditch because it takes water in the ditch to force water through it.  Colorado does not recognize this when measuring acequia water rights and has curtailed them based on the amount of time instead of the amount of water.  Thus, farmers who sell their rights to parties off the land hurt the entire community.

Chavez believes that the Las Animas community’s water resource is often used not to raise families, but is transferred to locations as far away as Denver because rights holders sell out for personal monetary gain. He also stated “outsiders,” lawyers, and large companies like Nestle, take advantage of fractures in the community when attempting to purchase water as an investment.  When Colorado allowed the subdivision of land, lawyers speculated on water rights by taking advantage of one farmer fighting with another who both irrigate from the same acequia and are not united against speculators and outsiders.  Thus, Las Animas communities are gradually becoming non-producing agricultural communities.

Chavez’ concern for Las Animas county is based on his perception that corporate greed and fractured communities allow for “water grabs.”  Las Animas County, said Chavez, needs assistance researching historical consumptive use to grab water back from developers.

Huerfano County: Amos Mace

Mr. Amos Mace (“Mace”) said he remembers being a child and seeing snow in the mountains deep into the summer and fireworks on the Fourth of July.  Mace diverts out of the Huerfano River, and noticed that it gets smaller every year.  The Arkansas Valley Roundtable (“Roundtable”) appointed his father, and Mace sits in on the meetings because he is an engineer who understands water quality issues.  He said that he and his father work as a team to improve the situation for their community through the Roundtable and through filing for appropriations that benefit the community.

Unlike Costilla and Conejos County, Mace said nobody filed for an appropriative right in Huerfano County until recently.  The acequia irrigators in Huerfano County had to apply for augmentation, changes, and substitute water supply plans in order to maintain their agricultural output.

Mace explained what would help Huerfano County most, is finding a way to utilize historic consumptive use to legitimize a senior priority date for diversions that were filed late or not at all.

Conclusion

The four counties’ issues overlap, yet each has a unique history that provides insight into the importance of the Acequia Recognition Law and the acequias’ need for stronger, more direct protection in Colorado.

This conference note focuses on the panel discussion that centered on the purpose of the Congreso.  Special thanks go to Dr. Devon Pena, an acequia farmer on The San Luis People’s Ditch and Professor of Anthropology at the University of Washington.  Dr. Pena gave crucial testimony at the senate hearings for H.B. 09-1233, worked tirelessly with Sarah Parmar of Colorado Open Lands (www.coloradoopenlands.org) to create the first annual Congreso de Acequias, supported the Congreso with a grant made possible by The Acequia Institute (www.acequiainstitute.org), and strengthened the relationship between Colorado’s acequias and the New Mexico Acequia Association (www.lasacequias.org).