The Law of the River is paradigmatically the legal and policy framework for river basin governance in the largely arid Western United Sates. In parsing this notoriously arcane body of law, complexity theory and jurisprudence, or the philosophy of law, are useful tools. This work develops and applies a conceptual model of the Middle Rio Grande basin as a social–ecological system in an attempt to improve understanding, transparency, and a sense of meaning of the so-called Law of the River. This project confronts the legal ecology of the “Great River” and its principle middle valley tributary, northern New Mexico’s Rio Chama, through the lens of what it takes to operationalize instream ecological flows. The overarching “legal mapping” analysis draws on various strands of theory and practice coalescing around the diversity of institutions—or “institutional ontologies”—which, employing techniques of material culture, or new materialism, are constitutive of and indeed construct the Law of the River. On the question of instream flows, the legal analysis is mainly descriptive, prescriptive, and ethical by nature. It also draws on a significant body of interdisciplinary scholarship and applied research into the coupled legal–operational framework for New Mexico’s Rio Grande reservoirs. Especially relevant are the efforts of the Rio Chama Flow Project, a multistakeholder initiative studying and advocating for multi-objective instream flows on the Wild and Scenic-designated reach of the Rio Chama between El Vado and Abiquiu reservoirs. This otherwise largely untouched stream segment is, paradoxically, a highly engineer system and a core part of the transbasin water transfer under Reclamation’s San Juan–Chama Project. Owing to these marked contrasts, the Rio Chama is, therefore, ripe for scientific and institutional analysis, which is where this article joins the relay, with its unpacking of the mechanisms for instream flow innovation there. But the Rio Chama Flow Project’ s original legal hypothesis—that these instream, ecological flows can be further optimized throughout novel applications of hitherto underutilized “flexibility” in existing legal authorities, requires refining. As this article asserts, we must urgently and fundamentally reorient ourselves with respect to the Law of River considering: 1) the manifold contingencies and historic processes which it rests upon; 2) the planetary forces and mission-critical exigencies of global climate, as reflected in local social–hydrologic conditions; together with 3) the core attendant issues of justice—including indigenous rights and settler colonialism—all in a fundamentally transboundary, entangled assemblage. To put it more prosaically, a complex, adaptive system. Because the Law of the River is such an apparent lingua franca or boundary object, the ontology of this legal framework is an idoneous starting point, methodologically and substantively, since canonical water law and policy belie that constitutive diversity of this not merely abstract but situated, material, and embodied, body of law.
EDITORS’ NOTE: This work and appendices cited in the following article were initially developed to support the Rio Chama Flow Project through the Utton Transboundary Resources Center with funding from the U.S. Bureau of Reclamation. Specifically, this article is adapted from and expands on a report prepared for Reclamation by the Utton Center, The Law of the Rio Chama (Sept. 25, 2019), on the legal aspects of the Rio Chama Reservoir Operations Pilot Project. Relevant report findings are used with permission of the Utton Center and its initial contributors. Additionally, Reclamation’s contemporaneous efforts are reported in Rio Grande Basin SECURE Water Act Section 9503 Report to Congress (2021), pursuant to the SECURE Water Act of 2009, Pub. L. No. 111–11, 123 Stat. 1329. That report can be found at: https://www.usbr.gov/climate/secure/docs/2021secure/basinreports/RioGrandeBasin.pdf. All documents submitted to Congress can be found at: https://www.usbr.gov.climate/secure, which also contains an interactive web tool, the 2021 SECURE Report Web Portal, available at: https://experience.arcgis.com/experience/7461ca68b2da4620863ff27d65b8cf14. To access the appendix information, as cited in this article, please contact the author at: firstname.lastname@example.org.
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Integrating the Law of the Rio Chama through Institutional Ontologies of The Middle Rio Grande Basin,
Nat. Resources J.
Available at: https://digitalrepository.unm.edu/nrj/vol61/iss2/7