It’s been eight years since the Cloverleaf Trust Organization, doing business as the Riverbend Hot Springs, applied for an astonishing 400 acre feet annually of “new” or unappropriated hot springs water, which would have nearly quadrupled the 112.04 afa the Riverbend held.
The OSE, in an April 25 ruling, granted the Riverbend only 96 afa, giving it a total of 208.04 afa, which is about nine to 12 percent of all of the yearly hot springs natural discharge (without pumping). That’s if a 2013 study by Mark Person of New Mexico Tech is accurate, which estimated the discharge between 1,738 afa and 2,534 afa.
Seven parties protested the application eight years ago: City of Truth or Consequences, La Paloma Hot Springs, Artesian Bath House, Sierra Grande Spa, Pelican Spa, Charles Motel & Spa and Elephant Butte Irrigation District.
The OSE, as usual, was represented by its Water Rights Division.
After eight years, only the Sierra Grande, represented by Tessa Davidson, was left standing among the protestants.
T or C, EB Irrigation and the Charles dropped out voluntarily.
In what appears to be unequal treatment, the OSE hearings officer kicked out the Artesian and Pelican Spa about two years ago for not having an attorney. They, along with T or C, were using the same attorney, an elderly man who couldn’t continue after putting in more than five years on the case. This is known only by speaking to the Artesian. The OSE hearings documents posted online do not include the hearing officer’s ruling that those two parties be dismissed.
The Charles was pro se, then-owner Kathleen Clark representing herself. She was not kicked out for not having an attorney, but she passed away and the new owner did not take up the charge. Pelican Spa was also pro se, owner Sid Bryan representing himself. He too was not kicked out for not having an attorney, but about a month ago the hearings officer agreed to dismiss him as a protestant due to lack of prosecution.
T or C was allowed to remain, but dropped out anyway–without informing the public–which I confirmed via an IPRA–abdicating its obligation to protect the hot springs on the part of its citizens.
For a brief moment, under past-Mayor John Mulcahy’s leadership, the city showed an avid interest in protecting the hot springs. The city passed laws during his tenure, about 13 years ago, giving itself the authority to grant or deny well applications, but it hasn’t exercised that control.
The city needs to use its power to control how many wells are drilled into the hot springs and where the wastewater goes, first, because of its sewer system. The nearly 3,000 parts per liter of particulate in the hot springs’ mineral-rich makeup corrodes pipes and plays hell on the city’s sewer system, which past-City Manager Jaime Aguilera and past-Mayor John Mulcahy let the public know. From 2014 to 2020 the people paid for a $14-million sewer upgrade that was supposed to get us through 2030, but another multi-million-dollar overhaul is at the top of the city’s Infrastructure Capital Improvements Project list.
Second, the city could get in big trouble for not obeying the federal Clean Water Act. When the city gives out well permits, some of the wastewater is allowed to go into the sewer system and some is allowed to go into french drains on the applicant’s private property, or into the Rio Grande, in the case of the Riverbend’s 96 afa well permit. If the wastewater goes into the ground or the river, a CWA discharge permit is required. Mulcahy knew this, and put that requirement into city code, but it has been ignored. See:
https://sierracountycitizen.org/lots-of-holes-in-hot-springs-protections-and-oversight/
Neither the OSE nor the city is obeying the Clean Water Act when issuing hot springs well permits. The CWA, passed in 1972, defines wastewater with a high particulate content as a pollutant, requiring a discharge permit from the U.S. Environmental Protection Agency. New Mexico is one of four states that does not have “primacy,” that is, the EPA’s trust to oversee discharge permits into the Waters of the U.S. All of the commercial and most of the domestic well permits issued by the OSE and city since 1972 are technically in violation of the CWA and there will be hell to pay if the EPA ever notices.
The CWA issue aside, the city is shooting itself in the foot by not monitoring and protecting the hot springs from over-appropriation and over-pumping. The hot springs are the city’s biggest tourism driver, with related economic benefits for local businesses and city revenue derived from lodgers’ tax and gross receipts tax revenue.
The city dropping out of the case is a grievous public disservice because it allowed the OSE administrative hearings officer to not hold public hearings on the Riverbend’s application, since only one private protestant remained, the Sierra Grande. The OSE hearings officer allowed Sierra Grande and Riverbend to work out a deal between them, provided that the Water Rights Division had final approval. That precluded any public knowledge of how serious questions were resolved by experts.
The OSE, since 1950 or so, has demonstrated no interest in protecting the Hot Springs Artesian Basin, probably because it is historically grossly under-funded and under-staffed. For the last dozen years the OSE has had a Texas lawsuit hanging over its head, and Texas, unlike New Mexico, has put together a huge legal warchest to ensure it wins.
The Texas v. NM case is relevant to the Riverbend’s case.
The hot springs, before human interference, naturally discharged in the Rio Grande. Any interception of water that feeds the Rio Grande through pumping is of major concern to the OSE since 2013, when Texas filed a lawsuit claiming New Mexico is not delivering the water it’s supposed to under the Rio Grande Compact due to its groundwater pumping.
The Texas case reached the U.S. Supreme Court last year, which ruled that no deal can be made without the federal government being a party. The case is still hanging fire. But it has become clear that New Mexico needs to demonstrate it can control groundwater pumping from groundwater aquifers adjacent or connected to the Rio Grande, which includes the Hot Springs Artesian Basin–being pumped by the Riverbend.
Relatedly, the OSE closed the Hot Springs Underground Water Basin about two years ago, stating all water rights had been appropriated. The Hot Springs Artesian Basin is a part of the Hot Springs Underground Water Basin. Because of the “Bounds” case, the OSE claims it cannot turn away applications for domestic wells, which are still being permitted in the otherwise closed basin, which includes the hot springs district. The OSE reduced domestic well appropriations from 3 afa a year to 1 afa about 10 years ago.
I asked the OSE’s attorney, who also serves as the IPRA and public-information officer, how the Riverbend could be granted “new” water for commercial use. I received no answer, being directed to online documents on the case, which do not mention the basin closure. Evidently applications predating the closure, such as the Riverbend’s April 2017 application, are still being processed and permitted.
The Riverbend’s 96 afa will be pumped from one well— an experimental well the OSE allowed Riverbend to construct in 2014—HS-1101. It is a monster well, being the deepest drilled in the hot springs aquifer, going down 240 feet with a 23-inch diameter well casing. The well permit is “temporary,” limited to five years, evidently so the OSE can evaluate the effect of pumping on other water right holders. The OSE can only legally grant “unappropriated” water
https://nmonesource.com/nmos/nmca/en/item/374059/index.do. If the other prior water-right holders’ wells are affected (the degree of impairment is unspecified in the permit), supposedly the OSE will yank the permit.
Before everything went behind closed doors, the Sierra Grande submitted a report from a hydrologist/expert, Tom Myers, as part of its legal arguments. https://sierracountysun.org/feature/hot-springs-case-part-4-technical-memorandum-by-hydrologic-consultant-tom-myers/
Myers toted up water rights the OSE had permitted in the hot springs district through 2020 and estimated 12,200 afa has been appropriated. The hot springs’ discharge is about 2,000 afa, therefore the OSE has greatly over-appropriated it, the hydrologist said. This argument obviously didn’t hold much sway with the hearings unit or Water Rights Division, since it gave Riverbend 96 afa, adding to the over-appropriation.
The city, La Paloma and the Artesian also submitted a legal brief that requested the OSE to prove and verify that Riverbend had 112.04 afa existing. They offered evidence that an OSE field agent purposely or mistakenly documented that a Riverbend well had 112.04 afa, despite the original permit awarding only 3 afa. The OSE, Water Rights Division and OSE hearings officer did not respond to the legal brief, ignoring the request for verification of the Riverbend’s water rights entirely, which may explain why La Paloma and the Artesian were kicked out as protestants.
The Water Rights Division was obviously satisfied with the Riverbend’s pump test from the experimental well, required to determine if other water-right holders would be affected by the new appropriation. The results were explained by the Riverbend’s hydrologist, James Witcher, who concluded that the new well will affect no one.
Witcher’s conclusions were refuted by a world-traveled and noted hydrologist, Dr. Bruce Davies, who volunteered his expertise.
Davies said Witcher’s formula only applied to contained, clearly-bound water basins, and could not be applied to the hot springs, which was created by a seismic rift, is full of fault lines and has a fractured limestone base.
He warned that pumping from the 240-foot well, which had put a big hole in the cracked limestone bed, would likely create the hot springs’ major water highway, causing the lesser faults and cracks to close up through lack of use.
Most of the wells are drilled into the shallow, 40-foot-deep layer of the hot springs aquifer, Davies noted. Since the numerous byways through which the water wells up from the depths will no longer function, Davies postulated, this one big deep well could ruin hot springs access.
The pressure in the whole system would likely drop, lowering the head of the aquifer. Davies and Myers both pointed out, independently, that the hot springs’ systemic pressure is already compromised because of the numerous wells–127 wells existing in 2021 according to Davies’ report: https://sierracountycitizen.org/recent-study-refutes-the-2013-nm-tech-study-on-the-hot-springs/
Dr. Bruce Davies and Myers pointed out that the level of the hot springs aquifer is in danger of becoming lower than the Rio Grande aquifer. Cold and tainted river water could start pouring into the pristine hot springs. It could be happening already, since Davies’ charts show that temperature is dropping as is gallons-per-minute pressure.
The OSE and WRD do not have to resolve these hydrologists’ evidence and conclusions, since the administrative hearings process went behind closed doors.
The WRD used OSE experts submitted reports, but they weren’t tasked with determining if the hot springs aquifer was over-appropriated, only how much water would be deprived from the Rio Grande if 400 afa a year were pumped–400 afa within 10 years–which is probably the only reason the Water Rights Division lowered the Riverbend’s ask from 400 afa to 96 afa. Concern for the Rio Grande Compact/Texas vs. NM case, not the health of the hot springs aquifer.
The Riverbend currently has 15 pools, but wants to build eight more–the reason for the 2017 new-water application.
One of the conditions of the permit specifies that the 96 afa from well HS-1101 can only go into the eight new pools, which have not been constructed yet.
Another condition requires that the Riverbend withhold using 4.8 afa from another well, to offset the estimated water loss to the Rio Grande due to evaporation of surface water from the pools.
In addition, the Riverbend must install a “totalizing meter” in the experimental well and submit regular reports on those readings, as well as allowing the OSE onto the site for inspections at any time.
If the Riverbend pumps more than 96 afa from the new well, it must make a “double repayment by lease or retirement of valid existing rights acceptable to OSE.
Please see the links below for articles based on submissions made by the parties in prior years:
The City if T or C, yet again, screws the town and its future yet again!
Maybe we should boycott Riverbend, publicize what they’re doing, and encourage our visitors to go elsewhere to soak, to send a message about preserving the hot springs.