Preparing Water Users in the Lower Rio Grande for Adjudication Through an Informative Workshop

1. Preparing Water Users in the Lower Rio Grande for Adjudication Through an Informative Workshop by Leslie R. Kryder Water Resources Program November 2, 2009

2. Excerpt from the Offer of Judgment Mailing Sent to Water Users Lower Rio Grande (LRG) Adjudication: What is it?

3. State of New Mexico Adjudications with Lower Rio Grande Basin Indicated LRG Adjudication: Who? And Where? • The adjudication involves all water users in the Lower Rio Grande basin. • There are about 17,500 claims. Data Source: State of New Mexico, Office of the State Engineer, Santa Fe, New Mexico, (Accessed March, 2009) http://www.ose.state.nm.us/GRAPHICS/maps_activeAdjudication2003.gif.

4. LRG Adjudication: How? The Adjudication Process: • Step One: The OSE conducts a hydrographic survey • Step Two: Water users are joined to the suit • Step Three: Adjudication of individual water rights • Step Four: Adjudication inter se • Step Five: Final Decree Issued

5. LRG Adjudication: When? Lower Rio Grande Adjudication Abbreviated Timeline

6. LRG Adjudication Status and Statistics as of August 26, 2009 Offers of Judgment (OOJ) Remaining to Serve 6,559 Data Source: State of New Mexico’s Status Report For the August 26, 2009 Status Conference (CV-96-888). http://www.nmcourts.gov/watercases/monthly_report_archives.html (Accessed September 22, 2009).

7. Approach • A case-study using qualitative research methods • Promote a workshop through social and community networks

8. Stakeholders and Clients • All Lower Rio Grande (LRG) water users • Water managers and regulators (EBID and OSE) • Third Judicial District Court • Those who may want to appropriate additional water. Adjudication Stakeholders Clients for this Project • The water users • Institutions with power to influence the adjudication process in the interest of the water users, for instance, the Administrative Office of the Courts and State Legislators

9. Research Questions • What attitudes, concerns, and understandings (or misunderstandings) are preventing water users from effectively participating in the water right adjudication process? • Will attendance at a workshop designed to address common concerns about adjudication help water users to participate in a way that protects their water right?

10. Lower Rio Grande Community Ditch Associations(CDA) The numbers at right were obtained by merging the data in the Saavedra, Ackerly, and ISC lists. According to the NRCS Community Ditch Group List (NRCS, n.d.), there are 138 ditch groups. This list was probably developed in the 1980s and 1990s. It is not clear how these groups are organized or which of them may be still organized. * Four CDAs are on tributaries of the Rio Grande which are not part of EBID. Data sources: Ackerly, N, n.d.; Natural Resources Conservation Services, n.d.; Saavedra, P., 1987; B. Vigil, personal communication, June 16, 2009.

11. Research Question • Why are many community ditches not formally organized per state statute?

12. Target Community Small-tract water users with surface rights who are members of community ditches in the LRG. Study Sample: • Four community ditches • Primarily small-tract irrigators • Two unorganized ditches and two with community ditch associations

13. Study Area Study Area Data Source: Lower Rio Grande Basin Hydrographic Survey Report, Southern Mesilla Valley Section, Volume I, State of New Mexico, Office of the State Engineer, Santa Fe, New Mexico, December, 2000, page ii.

14. Study Process • Access • Exploratory interviews • Formal interviews (16 participants) • Pilot workshops (2 workshops) • Post-workshop survey

15. Formal Interviews Participant selection characteristics: • At least 18 years old • An irrigator on one of the study sample ditches • Had not yet responded to an Offer of Judgment (OOJ) on that ditch. • Chosen to reflect a mix of the following: • Ditch organization level • Irrigation purpose • Length of irrigation practice • Length of New Mexico residence • Summons response status • Ethnicity • Gender

16. Interview Questions • Knowledge of the adjudication purpose and process. • Knowledge of basic water law. • Concerns about the adjudication. • Questions about the adjudication. • Knowledge of helpful resources. • Interest in a workshop or other information about the adjudication. • Experienceof membership in a CDA or community ditch.

17. Four Themes from the Interviews • Level of water user ignorance • Complaints about the mailings • Impermanence of Community Ditch Associations • Importance of a local, accessible setting “What specific aspects of the adjudication would you like to understand better?” «The whole process.» «The legal pieces—what the intent is. » «It would really help if I had a clearer idea of what's going on when the next letter comes.» «Who should we be rooting for: EBID or the OSE? » « What are they doing and why? What’s the potential impact? » “Do you think the adjudication could be harmful to your water right? If so, how?” « It’s a concern. They could decide that this water (use) isn’t beneficial or take it away. » « If they take away the water rights it will reduce the property values. If they just reduce the number of inches, at least I’d still have something.»

18. Four Themes from the Interviews • Level of water user ignorance • Complaints about the mailings • Impermanence of Community Ditch Associations • Importance of a local, accessible setting “How well did you understand the summons?” « Not very well; I know you have to participate to keep the water. » «They sent something in legal jargon—I couldn’t understand it.» «Didn't understand the packet, which led to a delay in responding. Responded late.» «It wasn't clear to anybody. It wasn't your favorite mail to open up.» «On a scale of 1 to 10, about a 2. We’re not dumb, but after reading it through a couple times, it was still very unclear.» «Didn’t know if by signing I was giving permission to take away the water right.» «His first thought was “what in hell is this?”» «She “did and didn’t understand it”; was confused. » “ . . . Perhaps the most universal information trap is the one that inevitably occurs when attempting to communicate information. It is the trap of forgetting what it’s like not to know. The minute we know something, we forget what it was like not to know it.” -- Richard Saul Wurman, Information Anxiety

19. Four Themes from the Interviews • Level of water user ignorance • Complaints about the mailings • Impermanence of Community Ditch Associations • Importance of a local, accessible setting “What are your ideas about how the CDA or community ditch could be improved?” «It would help to have a list with everyone’s names and phone numbers.» «He and a neighbor agree that they’d like to hire someone to manage the water distribution. » «At one time there was a CDA—back when they got money to cement the ditch; but he’s been told that once the money was paid off, they disbanded. » «The CDA is poorly organized and run. The ditch is not in good condition, and even though money is available, the CDA hasn’t moved to repair it. The president is “flaky” and in the hands of the treasurer. » «Irrigation weekend is horrid; timing the gates is hard; there’s often flooding in peoples’ yards.»

20. Four Themes from the Interviews • Hold workshop in a community center • Workshop should be near where water users live • Offer in both English and Spanish • Make workshop a single session on a weekday evening or weekend. • Level of water user ignorance • Complaints about the mailings • Impermanence of Community Ditch Associations • Importance of a local, accessible setting

21. Pilot Workshops • Two workshops were held in different areas. • Irrigators on two ditches were invited to each workshop. • Workshops were promoted via flyers to ditch members and email (where possible). • Workshops were held at a community center on a weekday evening.

22. Rubrics Big Questions and Concepts • How should water be allocated among competing demands in an arid climate? • Using more water than the average renewable supply is not sustainable. Goals • Participants will understand the need for and purpose of adjudication of water rights. • Participants will understand the overall process of adjudication. • Participants will be able to apply a basic understanding of water rights in order to understand adjudication documents and complete the Offer of Judgement. • Participants will be able to access appropriate resources to get help. Assessment • Participants will demonstrate understanding of the need for and purpose of adjudication. (Post-workshop survey) • Participants will demonstrate knowledge of key terms, including: beneficial use, prior appropriation, real property, groundwater, surface water, and offer of judgment. (Exercise 1) • Participants will demonstrate understanding of the 6 elements of a water right. (Exercise 2) • Participants will correctly interpret official materials about the adjudication, specifically the Offer of Judgement, received from the OSE. (Exercise 3) • Participants will correctly complete the forms. (Exercise 3) • Participants will consult appropriate resources with questions. (Exercise 3)

23. Assessment • Format & logistics • Generally appropriate • Workshop should be longer • Observation of participation • Participants were attentive, asked questions, and were not antagonistic • Completion of exercises • Participants really liked Exercise 3, completing a sample Offer of Judgment • More time was needed for the exercises

24. Assessment • Objective survey responses • A majority responded correctly to 4 and incorrectly to 3 of the objective questions in the survey • Changes to some questions are needed • Certain points need more emphasis during the presentation • Participant comments and self-ratings • 12 agreed that the workshop had increased their knowledge; 3 said it was about the same • All respondents agreed that the workshop addressed their questions, reduced their sense of intimidation, found the instructor clear, and would recommend the workshop to a friend • Five made specific suggestions for improvements

25. Research Questions • What attitudes, concerns, and understandings (or misunderstandings) are preventing water users from effectively participating in the water right adjudication process? • Many irrigators do not understand the overall purpose of the adjudication. • Some irrigators fear that the adjudication will strip them of their water right or reduce the amount. Interview Responses “What specific aspects of the adjudication would you like to understand better?” «The whole process.» «The legal pieces—what the intent is. » «It would really help if I had a clearer idea of what's going on when the next letter comes.» «Who should we be rooting for: EBID or the OSE? » Interview Responses “Do you think the adjudication could be harmful to your water right? If so, how?” « It’s a concern. They could decide that this water (use) isn’t beneficial or take it away. » « If they take away the water rights it will reduce the property values. If they just reduce the number of inches, at least I’d still have something.»

26. Research Questions • What attitudes, concerns, and understandings (or misunderstandings) are preventing water users from effectively participating in the water right adjudication process? • Many irrigators found the mailings hard to understand and respond to. • Some do not respond because they don’t understand what’s at stake for them. • Some irrigators believe their water rights are derived from EBID rather than the state. Interview Responses “How well did you understand the summons?” « Not very well; I know you have to participate to keep the water. » «They sent something in legal jargon—I couldn’t understand it.» «Didn't understand the packet, which led to a delay in responding. Responded late.» «It wasn't clear to anybody. It wasn't your favorite mail to open up.» «On a scale of 1 to 10, about a 2. We’re not dumb, but after reading it through a couple times, it was still very unclear.» «Didn’t know if by signing I was giving permission to take away the water right.» «His first thought was “what in hell is this?”» «She “did and didn’t understand it”; was confused. »

27. Research Questions • Will attendance at a workshop designed to address common concerns about adjudication help water users to participate in a way that protects their water right? Post-Workshop Survey “What was the most valuable aspect of the workshop?” “Direct questions and open discussion.” “Extensive insight gained into adjudication process.” “See forms to be received and filled. Learning more about EBID.” “That the water right cannot be taken away without legal action.” “The discussions & experience of both instructor and then members of the group.” “Overall discussion of issues and then use of exercises in seminar to practice conceptual comprehension.” Post-Workshop Survey “How well did this workshop address your questions about the adjudication?” “This was great use [sic] to do a mock OOJ and have discussion about the process.” “I learned that adjudication is not such a hard word. I am knowledgeable enough to answer the question[s?] more comfortably.” “Overall discussion of issues and then use of exercises in seminar to practice conceptual comprehension.”

28. Research Questions Interview Responses “What are your ideas about how the CDA (or community ditch) could be improved?” «It would help to have a list with everyone’s names and phone numbers.» «He and a neighbor agree that they’d like to hire someone to manage the water distribution. » «At one time there was a CDA—back when they got money to cement the ditch; but he’s been told that once the money was paid off, they disbanded. » «The CDA is poorly organized and run. The ditch is not in good condition, and even though money is available, the CDA hasn’t moved to repair it. The president is “flaky” and in the hands of the treasurer. » «Irrigation weekend is horrid; timing the gates is hard; there’s often flooding in peoples’ yards.» • Why are many community ditches not formally organized per state statute? • Level of effort required to create and maintain a CDA. • Friction among members and limited avenues of appeal. • Influx of new property owners who do not understand how community ditches work nor how to irrigate. • Belief that it is EBID’s responsibility to manage ditches and irrigation.

29. Limitations of the Approach • Limited size of the sample for this study. • Relatively few community ditch irrigators a part of a CDA. Difficulty gaining access to unorganized ditches. • Another approach is needed to reach groundwater users.

30. Workshop Recommendations • Promote workshop through local organizations (incl. EBID) with access to surface water and groundwater users. • Offer the workshop on the weekend and make it 4 hours long. • See if timing and geographic scope of offers can be coordinated with OSE to facilitate workshop scheduling. • Offer a Spanish language version of the workshop.

31. Mailing Recommendations I recommend that: • The OSE send a pre-Offer of Judgment (OOJ) letter explaining the purpose and process in 1-2 pages in non-technical language. Re the Offer of Judgment: • Have a single response form to be sent to a single address. • Clearly identify which property is referenced by the OOJ, perhaps including a map. • Include a simple flow chart of the process. • Add a glossary of terms. • The Court post on its website a quarterly report about adjudication status and issues in nontechnical language. Include information about this in the pre-OOJ letter.

32. CDA Recommendations I recommend that: • The state require real estate agents and/or title companies to make buyers aware of the community ditch and associated obligations. • Community ditches get involved with the New Mexico Acequia Association. • EBID publish information on how to form a CDA on its website and newsletter. • EBID provide a fee-based gate-management service for community ditches. • EBID offer new irrigators a workshop on how to irrigate, notifyingthem about it when they apply for water service.

33. For Future Research . . . • Expand workshop to cover groundwater rights. • Determine how workshops could be coordinated with timing of OOJs. • Find local organization(s) and funding to sponsor workshops for both surface water and groundwater users. • Contact all formally organized CDAs about a workshop. • Explore ways to support and encourage CDAs. • Determine whether the approach is viable in other basins.

35. Additional Slides

36. Formal Interviews Participant Profile:

37. Workshop Participant Profile:

38. Post-Workshop Survey Q24 Q24 Would you be likely to attend a similar workshop if it were offered by . . . ? Q18 Whom would you ask for help with questions about the adjudication? A. An attorney 2 B. EBID 7 C. OSE 16 D. Ombudsman 9 E. Friends 0 F. Town clerk, etc. 1 G. Other (“Court”) 1