Sharing the Scarcity in Southern Colorado

Acequia Background

Every spring farmers and ranchers in southern Colorado’s San Luis Valley gather to participate in annual community acequia cleanings. Acequias, which take their name from the Arabic word for “water bearer” or “barmaid,” are traditional gravity-fed irrigation ditches of Spanish origin. They have existed in southern Colorado and New Mexico since settlers of Spanish decent began to inhabit the areas and have been central to local communities since before Colorado became a state. In fact, the San Luis People’s Ditch in Costilla County has Colorado’s oldest priority right, assigned in April 1852.

In traditional acequia-based communities, open ditches transport water to long, narrow plots of land, known as vara strips, to maximize the amount of users who have access to the water. A mayordomo, or ditch boss, which land owners, or parciantes, elect in a one owner-one vote system, controls the allotment of the water. One of the most significant and unique features of acequias is their communal nature. Not only do the users share in the cleaning and upkeep of the ditches, they also share the available water equally. Acequia communities share water equally when it is plentiful as well as when it is in short supply, and small-scale agriculture in southern Colorado remains intertwined with the traditional acequia method of water allocation.

Despite having existed even longer than Colorado’s prior appropriation doctrine, until recently, acequias existed outside the purview of Colorado water law. Acequias themselves may have a recognized priority right, but individual parciantes historically relied on the mayordomo to ensure that they received the proper allocation of water. Without their own priority rights, parciantes in southern Colorado had limited legal recourse within the prior appropriation regime to enforce informal entitlements to water.

2009 Acequia Recognition Law

In 2009, Colorado passed the Acequia Recognition Law, which allowed community ditches established prior to Colorado statehood and primarily irritating narrow strips of land perpendicular to the ditch to incorporate as an acequia ditch corporation. These corporations would then be able to draft bylaws that would allocate water equitably, rather than based on prior appropriation. Additionally, the acequia corporation could have the right of first refusal regarding the transfer of acequia surface water rights.

While the 2009 Acequia Recognition Law helped to solidify the cultural and economic significance of acequias in southern Colorado, two aspects of the legislation proved to be problematic. The 2009 law narrowly defined an acequia as a ditch that provided water primarily to long, narrow plots of land running perpendicular to the ditch, and in order to qualify as an acequia ditch corporation, two thirds of the irrigated land must fall within this limited definition. These limitations reflected the traditional form of acequia irrigation but excluded many modern acequia irrigators with non-conforming plots from taking advantage of the Acequia Recognition Law.

2013 Amendment

In attempt to rectify these inadequacies, the Colorado legislature amended the 2009 Acequia Recognition Law in 2013. The 2013 amendment deleted the original statute’s narrow language, thereby allowing ditches serving non-conforming plots to qualify as acequias and also allowing ditch corporations serving more than one third non-conforming plots to qualify as acequia ditch corporations.

New Opportunities

Following the recent legislative action, acequia irrigators and the communities in which they live have the opportunity to legally bolster the long-standing acequia tradition. To this end, the Getches-Wilkinson Center at the University of Colorado has partnered with nonprofits and local attorneys to assist acequia communities in taking advantage of the Acequia Recognition Law and the 2013 amendment. The Acequia Assistance Project unites practicing attorneys and law students to help unincorporated acequia organizations incorporate, conduct governance review for existing acequia corporations, and help individual irrigators understand and secure their water rights.

 

The title picture is of La Canova acequia near Velarde, New Mexico.

 


Sources:

Colorado Revised Statutes § 7-42-101.5 (2013) (amending Colo. Rev. Stat. § 7-42-101.5 (2009)).

Gregory A. Hicks and Devon G. Peña, Community Acequias in Colorado’s Rio Culebra Watershed: A Customary Commons in the Domain of Prior Appropriation, 74 U. Colo. L. Rev. 387 (2003), available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2269880.

Tom I. Romero II, Uncertain Waters and Contested Lands: Excavating the Layers of Colorado’s Legal Past, 73 U. Colo. L. Rev. 521 (2002).

Devon G. Peña, Presentation: Colorado’s 2009 Acequia Recognition Law: Punching a Hole in Prior? (March 2, 2010), available at  https://digital.lib.washington.edu/dspace/bitstream/handle/1773/16401/pena.pdf?sequence=2.

University of Colorado, Acequia Assistance Project, http://www.colorado.edu/law/research/getches-wilkinson-center/about-center/acequia-assistance-project (last visited March 4, 2014).