The Office of the State Engineer Hearings Examiner assigned to the case is Uday V. Joshi. He will likely hold the public hearing in Truth or Consequences where most of the protestants and the applicant reside.
Holding up the works is an extensive pump test the Riverbend was supposed to perform by Feb. 19, extended to March 24, but still no pump test has been scheduled. In addition, the Riverbend was also supposed to provide a “stipulated schedule” or hearing date agreed to by all parties. That was not done either.
The Riverbend is owned by the Foerstner family. Lee Foerstner filed the application April 2017 under “Cloverleaf Trust Organization,” represented by Attorney Joshua Smith of Watson Smith, Mesilla Park.
Foerstner was asked but said he couldn’t comment on the pending hearing or issues.
Three protestants represented by Attorney Peter Thomas White of Santa Fe are:
William Martin, trustee for the Martin Family Trust, doing business as the Artesian Bath House; Meleasa Malzahn, president of La Paloma Hot Springs and Spa and the City of Truth or Consequences.
A fourth protestant, represented by Attorney Tessa Davidson of Davidson Law Firm of Corrales, is T or C Properties, which owns the Sierra Grande Lodge & Spa.
A fifth protestant, represented by Attorney Samantha Barncastle of Barncastle Law Firm in Las Cruces, is the Elephant Butte Irrigation District.
A sixth protestant, Kathleen Clark, owns the Charles Motel & Hot Springs. She is representing herself as a protestant and has not submitted any arguments.
Sid Bryan, owner of the Pelican Spa, is also representing himself as a protestant and has not submitted any arguments.
Representing the Office of the State Engineer’s Water Rights Division are Attorneys Maureen Dolan and Owen Kellum, who are part of the OSE Administrative Litigation Unit.
Since the application is complex, the Sierra County Sun will do a series of articles on the matter, trying to keep them at 600 words for ease of reading and understanding.
It is an adversarial matter and the complexity does not allow all sides to be presented in one article. The Sun therefore asks readers to consider the articles in total in weighing the arguments.
All new water appropriations are granted or denied based on whether the water is already appropriated and if it will impair senior water right holders.
The Elephant Butte Irrigation District may have the strongest argument among the protestants that Cloverleaf’s application should be denied. It argues it is responsible for “the delivery of Rio Grande Project Water.”
In its capacity as project-water deliverer, EBID flatly states there is no new water right to be had connected to the Lower Rio Grande aquifer, of which the Hot Springs Underground Water Basin is a part.
“The United States, on behalf of the beneficiaries of the Rio Grande Project, made application in the early 20th Century to appropriate all of the then-unappropriated water in the Rio Grande from the Elephant Butte Reservoir to the New Mexico-Texas state line, therefore there is no unappropriated water in the Rio Grande.”
“The Hot Springs Underground Water Basin is inextricably connected to surface flows of the Rio Grande,” EBID goes on to argue, therefore the Cloverleaf appropriation “may” impair groundwater and Project water.
In addition, the EBID states it owns 9,500 acre feet a year of Lower Rio Grande underground water rights, which “may” also be impaired by the new Cloverleaf diversion.
“There is no unappropriated groundwater available for appropriation in the Hot Springs Underground Water Basin,” the EBID states, and asks the OSE to therefore “deny the application.”
EBID also argues, along with the Artesian, the Palomas, the City and the Sierra Grande that the Cloverleaf application is “flawed on its face” and should be rejected out of hand. It states zero water will be consumed, while also applying for 400 acre feet a year of beneficial use.
This zero use is possible because all the water will be returned to the Rio Grande, Cloverleaf argues, which is the natural outflow point of the hot springs basin. About 2,000 acre feet a year of hot springs water outflows into the Rio Grande currently, Cloverleaf notes.
EBID points out Cloverleaf’s own geologist, James Witcher, estimates half an acre foot a year will evaporate from pool surfaces, which is not nothing, making the application flawed.
The Artesian, Palomas and City argue that since none of the water will be returned to the hot springs aquifer, the consumptive use is “100 percent,” not zero.
The Sierra Grande argument is similar, but doesn’t go as far. It states that the application is fatally flawed since it “gives no showing” of how 400 acre feet a year pulled out of the hot springs aquifer “will result in a zero net depletion of water in the Hot Springs Basin.”
OSE Hearing Examiner Joshi refused to reject the application as flawed, ruling in December 2019 that Cloverleaf’s claim of zero consumptive use is an assertion that will have to be judged on its merits during the hearing.