The Rights of Rivers
Why you can trust us
On a cloudless July morning, hydrologist Paul Tashjian kneels in the dry riverbed of New Mexico’s Rio Gallina and digs out a sensor designed to track the desert river’s modest flow. Thickets of coyote willows release downy flowers on the riverbanks, and a hummingbird buzzes us as Tashjian, director of freshwater conservation for Audubon Southwest, connects his laptop to download the instrument’s data. Nearby, cottonwoods sieve the breeze beneath red sandstone cliffs, and spotted towhees scratch in the leaf litter.
The Rio Gallina flows out of the foothills of the Jemez Mountains in northern New Mexico, traversing canyons and washes on private and public lands along its 40-kilometer (25-mile) route to the much larger Rio Chama. Historically, a portion of Gallina water was diverted to a small farming operation, but today, that ration is part of a milestone experiment to return water to the river itself, purely to benefit the ecosystem.
What’s a river without water? For rivers in New Mexico, it’s not just a philosophical question, but a literal one.
Across the United States and the world, state and federal laws require that water managers maintain flows in rivers to support endangered species and to ensure that farms and cities have adequate supplies. But until recently, rivers rarely had water rights of their own. Their value lay simply in their ability to transport water to others, no matter the cost to the rivers themselves or the ecosystems they support. Now, as water managers, Indigenous communities, and environmental groups pioneer laws and policies that keep water in rivers for the rivers’ sake, that’s beginning to change.
In one of the most profound examples in recent years, the Whanganui Māori in 2017 legally protected New Zealand’s Whanganui River as a “living entity,” with the same rights as a person; and in Oregon, the Yurok Tribe in 2019 granted personhood to the Klamath River. These streams now have an intrinsic right to flourish with their own water, free from depletion or pollution.
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Paul Tashjian, director of freshwater conservation for Audubon Southwest downloads data from a sensor that tracks streamflow in the Rio Gallina. A coyote willow flower blooms near the edge of the Rio Gallina in northern New Mexico.
But how could such a reimagining of water law work in New Mexico and other arid regions, where nearly every drop is measured, allocated, and litigated? In 2017, the National Audubon Society applied for a permit that would test that idea, requesting the rights to 40 acre-feet (about 13 million gallons) of water annually in the Rio Gallina for “instream use” for “fish and wildlife purposes.” In 2019, the state engineer of New Mexico approved the lease, marking the first time that New Mexico had preserved a river’s flow for the benefit of the river itself and its ecosystem. While the amount of water in the Rio Gallina is small, this decision has the potential to fundamentally impact how New Mexicans think about their water—and to alter the courses of New Mexico’s rivers and streams.
When Tashjian finishes downloading the river’s flow data, we bushwhack back through the willows and invasive Russian olive trees to the canal that once carried diverted water. Then, we hike down to a square holding pond, now dry and flecked with white milkweed flowers. Below the pond, the old farmlands look like dusty fields scoured of trees.
Tashjian sees potential in these fields, despite their parched appearance. Since the landowners ceased farming, native vegetation, like saltbush and sagebrush, has come back. Tashijan imagines a future in which the entire area is restored to natural habitat—a thriving ecosystem that survives on rainfall alone.
Continuing downstream, we soon reach the Rio Chama, a tributary of the Rio Grande, and Tashjian’s Labrador Retriever, Gus, bounds ahead and splashes in. The sandy mouth of the Rio Gallina is dappled with deer and bird tracks, and velvety black butterflies drink from moist patches. Though no water is running, groundwater recharged by spring flows continues to support thriving cottonwoods, willows, and other vegetation.
In addition to recharging the underground aquifers that trees need to survive, runoff in late spring and early summer also provides critical moisture that riparian plants and animals rely on to complete their life cycles. Even flooding serves a critical function, shifting sediment and debris and creating sandbars where trees can gain a foothold. The inundated floodplain also supports many songbirds, including the endangered southwestern willow flycatcher that nests along the river. “You want really juiced-out wetlands for them,” Tashjian says.
Leases like the one on the Rio Gallina represent a new tool for environmental groups and others concerned about ecosystem health. But they also represent hope for the plants and animals dependent on the veins of water linking New Mexico’s mountains and deserts, its farmlands and cities. If water users and state officials continue to support the Rio Gallina lease, Tashjian explains, the next step will be to cobble together other small water allotments, eventually linking New Mexico’s riparian oases and creating a life-sustaining “string of pearls” in the desert.
New Mexico lags behind other Western states in approving environmental flows, a push pioneered in Colorado in the 1970s. Adrian Oglesby, a water law attorney and professor at the University of New Mexico law school, calls the state’s authorization of Audubon’s lease “revolutionary.” Yet in some ways, the foundation for the lease was laid down centuries before.
New Mexico’s scant fresh water was first managed for agriculture hundreds of years ago by Native communities, including the 16 Pueblos of the Rio Grande Valley, whose members dug gravity-fed ditches to ferry water from rivers to fields. In the 1600s, Spanish colonists introduced acequias, networks of cooperatively managed irrigation canals branching from natural waterways. Because both communities used a shortage-sharing approach, where each user shared in the bounty of wet years and the lean times of droughts, the systems didn’t stress water resources. And because the waterways were managed communally, they strengthened local cultural connections while also irrigating fields of green and red chiles, corn, squash, and other crops.
Over time, tribes and Hispanic communities created “agro-ecosystems,” as Oglesby calls them, in which the needs of human and nonhuman communities were intertwined. The myriad irrigation canals that branch from the Rio Grande and its tributaries, for instance, have long supported both farmers and willow flycatchers.
As more people moved to New Mexico after it became a United States territory in 1848, this history formed the basis for “prior appropriations,” which means the people who had used the water longest had priority when supplies ran short. Yet with more users and a colonial legal regime came an increasingly unique and complicated set of water laws. Today, Pueblos usually have primary rights to water, and many acequia associations are next in line. The state is legally obligated to divert a portion of its water to Texas. Cities, farmers, and industry all take a portion. The environment, Oglesby says, is “often discussed as the newest user,” not taken into account by water managers unless there’s an endangered species for which they’re obligated to preserve habitat.
And the so-called “paper water” promised in times of plenty rarely exists. Currently, half of New Mexico is experiencing severe to extreme drought conditions, which are predicted to become more frequent with climate change. “The reality we’re working in with these over-allocated rivers,” Tashjian says, is that “there’s more water rights than water in the river.”
In addition, New Mexico’s waterways are among the most vulnerable in the U.S. Of the state’s streams and rivers, 93%—the highest proportion of any state—are intermittent or ephemeral, meaning they don’t flow year-round.
The competitive legal backdrop and regular shortages leave people like Carolyn Donnelly, water operations supervisor for the Albuquerque office at the Bureau of Reclamation, in a tight spot. On one hand, Donnelly wants to help New Mexico’s ecosystems. She often leases water from partners who don’t use all the water they’re allocated, and “stretches it” to help keep small areas wet and to help fish, birds, and plants survive. Yet Donnelly is constrained by the system in which she operates, and her main obligation is to endangered species and farmers—not to so-called environmental flows meant to sustain the ecosystem as a whole.
During 2020’s record dry summer, local and federal partners diverted unused water to keep the Rio Grande flowing through Albuquerque. And despite better summer monsoon rains in 2021, it was a difficult year for those dependent on the Rio Grande: The central region’s irrigation district ended flows to farmers early, and New Mexico’s reservoirs were left with very little water in storage.
In these critical times, creative approaches to sourcing water have become not just aspirational but also essential.
“This is a really birdie spot,” says Amy Erickson, a biologist for Audubon New Mexico, as birdsong fills the canopy of cottonwoods between the Rio Grande and an irrigation ditch at dawn. As we walk, she quickly identifies the warble of a summer tanager, the buzzy chirp of a yellow-breasted chat, and the trilling of a spotted towhee. The one whistling a high-pitched “whitchitty whitchitty whitchitty,” she tells me, is a common yellowthroat, found at the water’s edge.
I have joined Erickson at this spot south of Albuquerque—one of six local sites where water taken from the Rio Grande for irrigation is returned to the river—to see firsthand whether riparian ecosystems can be strategically maintained with relatively small inputs. Our main quarry is the endangered southwestern willow flycatcher, a subspecies of the willow flycatcher, impacted here by dwindling water and decreasing habitat and monitored by Audubon on behalf of a network of nonprofit and governmental partners.
It’s late July and the end of the nesting season for the flycatchers, also known as “swiffles” for their abbreviation “SWFL.” Erickson’s method is simple: She plays a recording of a male flycatcher, and if she hears a real bird call in response, she logs it.
A thicket of thirsty, invasive salt cedar shades the narrow trail to the river, its brown scales blanketing the ground, turning the soil salty and inhospitable. For stretches of the Rio Grande choked by invasive plants, restoration requires more than just maintaining or increasing water flow. Since it guzzles precious water and raises the risk of wildfire, the salt cedar (also known as “tamarisk”) might otherwise be targeted for removal. But salt cedar also creates dense, protected habitat that’s appealing to willow flycatchers.
“In areas where [the birds] don’t have any good remaining native habitat, they will use the salt cedar for nesting,” Erickson says. That’s one reason these surveys are critical: “If we want to do restoration on a site where we know flycatchers are nesting in the salt cedar, we’ll put a buffer around that nest site.”
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Cooper’s hawks and sharp-shinned hawks are common residents of the bosque, perching high in cottonwoods to spy their prey—often the many songbirds of the riparian forest. Photo by Christina Selby A spotted towhee sings from the top of a blooming cottonwood tree. Photo by Christina Selby
We trek through deep, fine sand as the sky lightens. Erickson stops at intervals to play the call, and we listen intently. I catch the faint scent of moist earth through my mask.
Finally, we reach the river. A shallow channel meanders between sandbars and reflects the clouds. This is where Erickson heard a flycatcher on her last survey. She holds up her phone and plays the recorded “fitz peew” series. We wait. Other birds continue their dawn chorus, but no flycatchers reply.
This spot should be perfect. Thick stands of coyote willow roll down to a sandy bank a few feet above the sluggish río. But the lack of flycatchers at this seemingly ideal site mirrors their fate across the Southwest: The outlook for flycatchers and other riparian species in the region is bleak. “These Western riparian habitats that they’re closely tied to, they’re almost gone,” Erickson says. The bird she heard earlier in the season was probably just passing through.
Given the tremendous pressures facing these ecosystems, the stakes are high for rare plants and animals. And while restoring water to rivers transcends the often-narrow focus of protecting endangered species, Audubon’s experiment may very well give flycatchers the boost they need to survive.
Along the Rio Grande, a network of canals and ditches branches like veins, sluicing water to farms, gardens, and fields before eventually returning it to the river. Some ditches are centuries-old earthen acequias winding through pueblos and villages. Others are broad and barren, marching in neat grids through farm fields.
For decades, engineers like Mike Hamman, the chief engineer at the Middle Rio Grande Conservancy District, have focused largely on building dams, levees, ditches, and channels to deliver New Mexico’s water to the people and animals legally entitled to it. But as Southwestern rivers dry up, even people whose obligations seem at odds with Audubon’s experiment are coming around to the idea of letting rivers flow for their own sake. As Oglesby, the law professor, puts it, “the cultural resistance to environmental stewardship” that’s long been prevalent among state water managers might finally be decreasing.
Hamman, whose agency provides water to farmers along a 240-kilometer (150-mile) stretch in central New Mexico, is a good example. He’s been working on water issues in the region for more than 35 years, and says the severe shortages in recent years have begun to change his approach. Climate change has brought higher temperatures and increased evaporation, leading his agency to make “strategic changes in the way we manage water and how we divert it.”
Invasive burdock, here growing successfully in the dried bed of the Rio Grande, has become a common part of the river’s ecosystem. Photo by Christina Selby The desert cottontail is a common species in the bosque along the Rio Grande. Photo by Christina Selby
One such change is a water-leasing program, where farmers fallow their fields and lease their water to the district for use on other farms or to keep in the river. While the program is still new, “shortages bring attention to the issue,” he says. In 2021, the number of participants in the program quadrupled over the previous year.
Even John Romero, who directs water rights at the Office of the State Engineer, agrees that while Audubon’s lease is logistically challenging, “it’s in the public welfare of the state of New Mexico to keep a river flowing or to maybe keep a certain habitat alive. Those are positive things.”
While change is difficult amid a tangle of local, state, and federal rules, supporters say the benefits of keeping New Mexico’s rivers alive far outweigh the sacrifices. And each small change—from Hamman’s water-leasing program to Romero’s willingness to accept Audubon’s experiment—represents another mechanism to support the vision of riverine oases weaving through New Mexico’s arid landscapes.
While Audubon’s 2019 lease on the Rio Gallina was the first time state agencies agreed to let a river flow for its own sake, it’s not the only example. In 2020, the nonprofit Trout Unlimited leased nearly 3 acre-feet (nearly 975,000 gallons) per year from Dick Nordhaus, whose family owns a 243-hectare (600-acre) ranch in northern New Mexico. Ponderosa pine trees cover the ranch’s hillsides, and Nordhaus says they’ve spotted bears, elk, deer, ducks, herons, and eagles here—all drawn to the creek that spills out of the Sangre de Cristo Mountains and runs through Nordhaus’ ranch before joining the Gallina.
In Nordhaus’ grandparents’ time, in the late 1800s, the creek’s banks were free of vegetation, likely from overgrazing. Now that the family is letting nature take its course, thick willows crowd the banks. Beavers have returned, and the family worked with a local watershed alliance to restore native vegetation. Last year, they took another step in habitat restoration, leasing water previously diverted to a hay field to Trout Unlimited to keep the stream flowing—the second such permit approved by the state engineer. While the amount of water is small, it builds on the precedent set by Audubon’s lease.
The ranch is shared among family members as a vacation home, and Nordhaus says the additional income will help support and preserve the property. But mostly, “it was a good idea,” he says. The creek’s cold waters help cool the Gallina, improving its fishery. The downstream city of Las Vegas, New Mexico, is also dependent on the Gallina for its municipal water supply, so keeping water in the creek helps ensure a steady supply for city residents. “As far as we’re concerned, there’s nothing but benefit to this,” Nordhaus says.
In New Mexico, water rights’ holders must use their water in order to maintain their rights, but drought can make tight profit margins nonexistent during a bad year. If Trout Unlimited can offer farmers reliable income through leasing their water—instead of investing in a crop that may fail due to drought—“you don’t even have to worry about producing a hay crop,” says Toner Mitchell, the New Mexico water and habitat program manager for Trout Unlimited. “You’ll be compensated for the equivalent.”
Living in the arid Southwest, water seems to constantly slip through our grasp—soaking into a sandy riverbed or seeping into a deep aquifer. Even summer’s towering clouds often fail, releasing veils of rain that evaporate before they reach the ground.
Because of its scarcity and importance to all living things, people native to the Southwest have long treated water as a sacred resource. But since European colonizers arrived in the region some 400 years ago, water has often been treated like any other commodity. Indigenous communities are part of the growing chorus challenging that view.
Julia Bernal, a member of Sandia Pueblo and also from the Yuchi-Creek Nation, is director of Albuquerque-based Pueblo Action Alliance. There, she advocates for Indigenous water rights and management strategies in place of the capitalist, colonialist system that treats water as a commodity. Indigenous communities offer a fundamental difference in their perspectives on water, she says. Instead of being viewed as only resources, waterways are considered “living entities.”
“Our original instructions have been to tend and steward the land and the water,” Bernal says.
The leases being pioneered by Audubon and Trout Unlimited share the same ethos as this Indigenous worldview—an ecological approach to water management that emphasizes interdependence. They may be the first step toward a more expansive system. And if the concept is successful and expands to other parts of the state, it has the potential not only to aid New Mexico’s diverse ecosystems but also its human communities.
“So much of New Mexican culture is based on our acequia systems,” says Mitchell. When rivers dry up, “it’s not just an acequia or farming that will perish. It’s an entire culture.”
This story originally appeared in bioGraphic, an online magazine about nature and solutions powered by the California Academy of Sciences.
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Sara Van Note
is a print and audio journalist based in New Mexico. She’s inspired by birdsong and fascinated by stories of resistance and resilience. Her stories have appeared in various media outlets including PRI’s The World, NPR’s Latino USA, the Christian Science Monitor, Mother Jones, bioGraphic, and Undark.
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