The legal environment and communal irrigation

The latest issue of the International Journal of the Commons has an article by Steven M. Smith, "Dynamics of the Legal Environment and the Development of Communal Irrigation Systems". From the Introduction (citations removed):

Archinia, Acequia System of El Rancho de las Golondrinas

Given the importance of external forces to the success of the commons, calls to integrate political ecology with the commons literature are becoming a common refrain. The combination can be approached from both directions: how do power structures shape institutions and how do institutions shape power structures? I take a historical perspective to explore both questions and their dynamic relationship. Specifically, I consider how external legal changes alter the incentives for how local users organize themselves and how those changes in local organizations alters the political coalitions, affecting subsequent legal changes.

To explore the question, I document and analyze the evolution of the legal environment and the development of communal irrigation systems, known as acequias, in current day New Mexico, US. Acequias have been held up as a case of a long-lived successful communal management regime of a natural resource . In the region of study, some acequias date back to the 16th century when Spain first colonized the area. The acequias have experienced sizeable shifts in their external legal surroundings, most rapidly and significantly during the US territorial period (1851–1912), that can be used to assess the relationship of external legislation and communal irrigation systems.

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The most significant legal change occurred when New Mexico adopted a water code that shifted from communal, shared rights to seniority based, individual rights adjudicated and administered by the centralized Office of the State Engineer. While emblematic of James C. Scott’s thesis that governments seek to make property rights legible, private and, thus, manipulable by the state, it warrants pointed out that this occurred in 1905, nearly 25 years after it happened in the other Western arid states. My argument is that the delay was rooted in the political power the acequias held initially but slowly lost, and, more broadly, that legal changes external from the local governance regimes are not entirely exogenous.

In this case, the early laws were supportive of the acequias’ communal arrangements, and acequias continued to propagate. But slowly new irrigation interests did form, gaining small adjustments to water law that began to further incentivize alternative organizations. Only after these alternative irrigation organizations gained dominance did the political parameters shift, resulting in the narrow passage of the 1905 water code. Notably, the opposition came from council members that represented areas with more acequias. Legally and politically weakened, the challenges began to mount for the acequias afterwards.