Streams, springs, and water rights (Santa Fe, Ruidoso: condominiums, buying, deed)
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I'm writing this because I just discovered that the spring-fed stream that goes through the property we bought 3 years ago has completely dried up. This is the first time this has happened in 3 years... even after the very dry winters and springs we've had the last two years. Oh, it wasn't flowing much either of the last two years in June, but it was a little. And this year after the huge amount of snow and regular rainfall we've been getting, it's dry? Three years ago after a winter and spring that was similar to this one it was a nice creek by NM standards (photo below). You'll have to use your imagination regarding what it looks like now, but there isn't a drop of water in it.
Is this normal? Seems unlikely to me, but maybe springs are more random than I know. One thing that makes me suspicious is that we are downstream of a big Hubbard development (Copper Canyon, Ridge, and Mountain), and he had originally planned to have a big fancy golf course watered with wells. Sonterra (a nearby development) sued him over that prospect and won, so he then attempted to drill into a very deep aquifer and use that instead. Unfortunately after much expense, that was unsuccessful because the water had too many undesirable substances in it to use. So now I'm wondering if he (or someone else) has decided to tap into this spring.
I plan to do some investigating shortly. The stream runs mostly through the developments listed above, and apparently originates just west of 48. The only other properties the stream runs through are mine and the guy next to me... then it joins with the Bonito. So there are very few people who would be likely to notice it, let alone complain.
There is no way that someone could steal water legally... is there? If I discover something is amiss, I suppose my only recourse is a personal lawsuit. Hubbard has very deep pockets while mine are very shallow. Not looking forward to that...
I apologize if I'm ranting for no reason... ie it turns out that it's completely normal for a spring to dry up after a wet winter. In that case I trust it will reappear at some future date.
Once upon a time - as the story goes - there were MANY springs that ran year around in the area. And many of those "many springs" dried up long ago. But amazingly I witnessed some of them return to life after the heavy rainy season of 2008 when the Ruidoso river flooded, as did other area creeks.
I live near Cedar Creek, which is one of those small streams that has a sporadic history. It runs under Mechem at Innsbrook Condominiums and into their golf course pond. It was running as full as it was after the 2008 wetness earlier this spring, but now is down to a trickle where it enters the golf course. That's still more water than it had before the 2008 event when it went for several years totally dry.
Because of the very rocky nature of the small creek you pictured, it's possible the water level has gone sub-surface. Have you noticed any water anywhere along its length? This is what happens to other small creeks in the area when visible surface flow stops.
As for developers "stealing" water by drilling wells, it's something that does happen. Eagle Creek has long been deprived of flow year around - as it used to do - because the village of Ruidoso drilled a number of wells RIGHT IN THE BOTTOM OF THE CREEK BED! In effect those wells are nothing more than cisterns that collect the surface flow that once ran all the way down the Eagle Creek watershed.
Could this possibly happen to waters in shallower aquifers that Hubbard drilled through when putting down those mile deep wells? Seems a likely possibility to me - that he's drained the shallower aquifers into the deeper ones. If he's not able to produce those wells, they should be cemented to prevent downward flow of water he is NOT entitled to.
When the creek has been "dry" in the past during late spring it was only dry in parts... in other places it would be flowing in a trickle. It is normal for it to be subterranean over much of the length, but now there is nothing. I've never seen it like this... and after a very wet winter and spring, no less! I walked about a 1/2 mile upstream and saw nothing but tiny stagnant puddles, likely left over from recent rains. It just like a ravine with no spring flow at all.
I've checked out Hubbard's deep well and it isn't real close to the stream (~1/4 mile away)... and of course it's uphill of it. I don't know if that could be the cause, but I doubt it. That well was dug about 2 years ago and the stream seemed ok until recently. For instance it was flowing decently last June after a dry winter and spring.
I'm suspicious that he has some other project to get water, and sucking it out of this stream seems like a logical ploy. My neighbor said that after Hubbard lost the lawsuit to use shallow wells, and then the deep well failed, he lobbied to take water out of the Bonito, and wasn't successful there either. So he is truly stuck... if he doesn't get water for his golf course, then his exclusive resort community is not going to fly.
If I do discover that he is taking the water from this stream... is this illegal or not? Your description of similar shenanigans around town, makes me wonder. If it is illegal, maybe I can get the owner of Vista Rio Bonito to share some of the expense of suing him, since one of the prime properties that hasn't sold has this stream... and a 15ft waterfall... as one of it's best features.
This is not looking good. If I'm reading this right, it looks like the State Engineer has broad discretion in allowing water to be appropriated for pretty much anything. If you miss the 3 week protest period after it is listed in the local paper, then you are screwed. It's frankly hard for me to believe. I'd think if they wanted to be semi-fair about this, they'd have to notify those who would be directly effected, rather than make a token announcement in the paper.
Does anyone have experience with this sort of thing? I'm clueless...
Anyway, I plan to do some investigating tomorrow...
Western States Water Laws - New Mexico (http://www.blm.gov/nstc/WaterLaws/newmexico.html - broken link)
I don't wish to debase the state engineer, but NM has a long history of corruption and malfeasance in government agencies - kickbacks, backroom deal making, etc. Add to that the deep pockets of Hubbard and see what conclusion you come to.
That having been said, if you suspect the state engineer has issued Hubbard permits to divert water, that would be the place to begin your investigation. Open records are ordained by law and the state engineer would be in violation if that office doesn't afford full disclosure.
I suggest checking your deed to see what water rights you own and then politely asking the State Engineer about the water development in the entire basin. That may require a trip to Santa Fe or maybe just a look in the State Website.
I suggest checking your deed to see what water rights you own and then politely asking the State Engineer about the water development in the entire basin. That may require a trip to Santa Fe or maybe just a look in the State Website.
Western Water Law is a thing unto itself.
Exactly. WAY too many people around here are buying property and because they have a stream running through it assume that they have a "right" to use it. Most of them DON'T! Has caused alot of headaches for those of us that have a legal right on specific days and times to irrigate only to find that there is no water avaliable because someone above us is stealing the water.
Exactly. WAY too many people around here are buying property and because they have a stream running through it assume that they have a "right" to use it.
Not only that, it's illegal to dam up creek flow to create a pond without specific waiver from both the state and federal authorities. But people seem to do it all the time and get away with it unless someone reports them. One way to dam up the stream is to need a bridge to access both sides of private property and design the bridge in such a way that it acts as a dam.
PS Irrigation districts in various parts of the state have federal oversight (Corp of Engrs.) of diversion dams that distribute stream flows to local farmers. Such is the case in several locations along the Rio Grande and Pecos rivers in NM.
I suggest checking your deed to see what water rights you own.
I'm not interested in having any rights to the water... I just want it to exist. I'm sure there is nothing in my deed that gives me a right to it. I just want it to flow it's natural course. It looks and sounds nice, contributes greatly to the greenery in the area, and attracts birds, deer, elk and other wildlife.
The existence of a stream is termed "instream flows" and appears that NM is the most backward state in the country for protecting them.
I did some investigating yesterday via bicycle. I was with other people and they didn't want to goof around too long, but I did check out the stream in between my property and the transition between Copper Ridge and Copper Mountain... ~1.5 miles I'd guess. It's dry the whole distance... and at the farthest point there is a pond with water gushing into it from a pipe. This is right next to the stream bed, but not in it. There is a building next to it and a sign that says Copper Mountain Yacht Club (cute). I don't know if the water going into the pond is recycled via a pump, or if it is "fresh"... but if it's fresh, then the water would need to be taken out of the pond at some point. I didn't see any evidence of irrigation or development of Copper Mountain (the newest section)... it looks like it has been put on hold. At any rate, I need to trace the stream farther up before I'll know what's what.
As I understand it, there are a limited number of water shares in the state of New Mexico. These are like commodities that developers snap-up to do, well, their developing. This Hubbard probably bought some water shares from a rancher in Southern New Mexico in order to make his development. He can probably take water from any source available to him including the aquifer that supplies your creek. Too bad. I like to see running streams too.
I own some creek frontage property myself in Colorado. I don't have any rights to the water either. Someone else owns them.
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