Water Rights Discussion

The following text is a discussion of the water rights problems now facing the City of Ruidoso. They directly affect the Ruidoso River Association since the source of much of the water used by the city comes from the Ruidoso River.

A VIEW OF THE WATER PLAN---- FROM OUTSIDE THE TENT

Webster’s dictionary defines a plan as "a method for achieving an end." The thinly-veiled specific end sought after in the Village’s new 40-year Water Plan (40-WP) appears to be to more than triple the present population of our mountain paradise by 2040. Unfortunately, outside of some creative legerdemain and a lot of wishful thinking, the plan doesn’t begin to tell us how we are going to acquire the water supply to achieve that end, especially in view of the fact that the current water system is already arguably maxed out.

Either the village has to acquire the rights to more wet water to support such growth, or it has to limit growth to the known and realistic supply until it acquires more wet water. It’s that simple. This is not an anti-growth opinion---it’s a fact that is fall-down obvious. Village administrators cannot afford anymore to accept the pabulum from its Water Task Force that we will somehow be able to acquire more water down the road, or that "the problem will disappear with some rain." As the village has found out over the past 5 years, all of the realistic wet water around here is more than spoken for, and little of that is for sale.

In this direction, the recently-completed 40-WP, written by long-retained village consultants under the auspices of a newly-appointed Water Task Force, does little to shed light on a serious problem that current village administrators must deal with. Its authors are the same people under whose watch the current dilemma has taken shape (See "Water, Water Everywhere," Ruidoso News, 12-13-84). As written, the 40-WP is actually a disservice because it presents an unrealistically rosy supply picture that obfuscates the problem by creating a false sense of security.

It is no secret that the crux of the Ruidoso’s water problem is that it has rights to thousands of acre feet of water in the Eagle Creek Basin that isn’t there and only minuscule rights to water in the Ruidoso Basin where the wet water is. Counting rights as available "supply" in the Eagle Creek Basin and then counting available water (whether we own it or not) as "supply" in the Ruidoso Basin, as the 40-WP does, is like counting apples as oranges (think Enron). It does not give an accurate picture of the supply side of the equation. I assume that those on the Water Task Force know this, yet they keep confusing water rights with wet water. A "water right," as you know, does not guarantee that the water is actually there, nor does the presence of "wet water" mean that you have a "right" to take it.

Presumably to suggest that an extrapolated population growth rate is realistic, the 40-WP states that the current water system is "capable of producing peak production capacity of 6,721 acre feet per year." This is "obtained," the report goes on, "by the constant pumping of Cherokee and Hollywood wells essentially year round." Since we only need a total of 2,500 acre feet per year now, and since these prolific wells are together capable of producing 2000 acre feet per year alone, this statement sounds reassuring. The only problem is that the assumption is impossible, and for at least two reasons, 1) the village only has the "right" to take 486 acre feet of water per year from this basin, and 2) if it took all of those Ruidoso Basin rights from the wells, it would have no rights left to divert water into the Grindstone Reservoir and Treatment system. Nor is this statement followed by the inclusion of a mitigating fact---Hollywood and Cherokee water doesn’t taste good and would need expensive treatment for extensive municipal use.

The same kind of sleight-of-hand is employed to make effluent credits look more reliable than they really are. Effluent credits are perfectly legitimate "extra" water rights that arise when waste water that has been treated is discharged back into the waterway. The problem is that at the present time this extra credit is limited to the surface flow of Eagle Creek, which has, of late, been minimal and intermittent at best. Despite the fact that the average annual effluent credit allowed over the past 13 years is only about 150 acre feet per year and the fact that the credit has only exceeded even 300 acre feet per year just once, the 40-WP unabashedly includes 800 acre feet of effluent credit in its list of available water supplies, as if Eagle Creek were always flowing at its historical maximum, rather than not at all.

Getting back to the Rio Ruidoso Basin, the village only has the rights to take 486 acre feet of water per year from both the Rio Ruidoso and the Hollywood and Cherokee wells combined, regardless of what flows by in the river. This amount could be increased in perfect times by the aforesaid effluent credits to as much as 1286 afy. The rest of the flow-by is owned by downstream users (Are you listening, Al Junge, et al?) The village cannot take any more water than it owns. The rest, by definition and law, must flow by. The accounting for this legal diversion is on a 5-year basis. In point of fact, at the end of May the village has only 44 acre feet of water left in its 5-year draw from the Ruidoso Basin which has to last until November 1, 2006! Rights in the Ruidoso Basin are so overdrawn that the Village, under a rarely-used procedure, just requested and received approval from the State Engineer Office for an emergency effluent credit transfer of approximately 500 afy to cover the 27 month period between now and November, 2006. For some inexplicable reason, this emergency request did not include the downstream wells as a point of diversion, so with only 44 acre feet left, the prolific Hollywood and Cherokee wells will soon have to be shut down for 27 months! Why? The failure of the water plan to even mention what is going on with the Ruidoso Basin rights is worrisome. To assume by omission that the SEO will allow this kind of emergency transfer on a regular basis to support a growth agenda is sophomoric.

Incidentally, another fact which needs mentioning is that drilling more wells to tap the water you own doesn’t give you the right to more water---it only puts more straws into the cup.

The legerdemain in the 40-WP reaches a crescendo when it insinuates that the Village’s minimum flow agreement with the Ruidoso River Association has the effect of denying the village of "all of the flow it may have rights to from the Rio Ruidoso." This statement is deliberately disingenuous. It is based, again, on the "sound-bite" assumption that the Village of Ruidoso owns all of the water that flows by in the Rio Ruidoso. Here are the facts, you decide:

The report states that "….the average yearly flow of the Rio Ruidoso is 6,892 acre feet per year" (we think closer to 5,000). As stated above, the Village only has the "right" to withdraw 486 af (1286 af in a perfect world) of water in the whole Ruidoso Basin, which includes the downstream wells. Even if all of its rights were taken from the surface water of the Rio Ruidoso and none from the downstream wells, that would still leave 6,406 (5,606) acre feet of river flow that must be left in the Rio Ruidoso each year because other people own it, not because the agreement with the Ruidoso River Association precludes it.

Furthermore, since the minimum flow agreement was signed in May of 2000 the Village has diverted all of its rights and then some. To wit, it diverted 1,099 af from the Ruidoso Basin in 2000, 1,703 af in 2001, 1,044 af in 2002, 1032 af in 2003, and 814 so far in 2004. As a matter of fact, as stated above, this over-diversion has created a drastic run-down of rights in the current 5-year accounting period. In the light of these facts, the inference that the agreement with the RRA has in any way affected Ruidoso’s right to take water from the Rio Ruidoso is a non-starter for blame. The proof is in the pudding. The minimum flow agreement has been in effect for the last four years under drought conditions and the management of the diversion has worked perfectly: the river has flowed by continuously at the same time that the Village has taken all of its water rights.

Etcetera, etcetera….

To be worth its cost, and much more importantly, to be helpful for those depending upon it to make current decisions based on assumptions about the future, including developers, the Water Task Force should be ordered immediately to revise the 40 Year Water Plan to present an accurate picture of our water situation. After all, who are we kidding? It would be devastating and inexcusable, would it not, for Ruidoso to run out of water on a holiday weekend when the facts to avoid it were there in black and white for all to see?

Dick Wisner, Executive Director, Ruidoso River Association, Inc. 7-31-04

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The following information was provided by Mr. Ben Mason, our technical director. It is an annotated review of the 40-WP (the recent 40 year Water Plan) from which the above information and observations were drawn.

An Annotated Review of the Ruidoso Water Plan

Ruidoso’s new 40-Year Water Plan was written by Wilson & Company, Inc., an Albuquerque engineering consulting firm, and its Appendix by Atkins Engineering Associates of Roswell. Both firms have advised the Village of Ruidoso for many years, are members of our Water Task Force, and are presumably the architects of Ruidoso’s current water policy and strategy. This analysis of the water plan was assembled by the Ruidoso River Association because of our concern that the plan does not accurately portray Ruidoso’s real (and grim) water situation. Nor does it advance any specific and realistic solution.

The plan’s "Sustainable Capacity" of village wells, ostensibly a measure of their productivity, is significantly inflated compared with traditional estimates derived from historical data. It is estimated "from well logs and from State Engineer proof of completion" rather than actual performance records. Sustainable Capacity of the North Fork Eagle Creek wells (for example) is shown to be 2,431 acre ft/yr. In contrast, the actual average production of the North Fork well field from 1991 through 2003 is only 603 acre ft/yr, and in its best year (1999) 1,033 acre ft/yr. The Sustainable Capacity of all other village wells is similarly overstated. The plan goes on to explain that estimates of Sustainable Capacity are "under ‘normal’ non-drought conditions", but they still have little relationship to reality.

The appendix – Water System Infrastructure Issues – is less useful than it might be because much of it is written in opaque engineering jargon, mostly boilerplate cut and pasted from SEO files. If its purpose is to instruct and inform our administrators and elected officials, it falls short. Otherwise, the plan is an excellent catalog of the physical resources of the Ruidoso water operation – reservoirs, pumps, pressure zones, booster pumps, etc.

The inventory of water rights is more a complex story than the equipment inventory . Ruidoso’s Eagle Creek (including North Fork) water rights total 7,146 acre ft/yr, but most of the water represented by those rights does not exist and never did. Average production since 1991 is only 1,234 acre ft/yr, and maximum Eagle Creek production (1995) was 1,531 acre ft/yr.The Eagle Creek watershed is small, only 16 square miles, and its underground aquifer has little storage capacity. In a rainy year, the creek flows and gives good production, but in a dry year, the creek quickly dries up, and well production becomes a zero-sum game – each well cannibalizing its neighbor. For related reasons, our effluent credit sinks almost to insignificance when Eagle Creek stops flowing.

We own or lease 486 acre ft/year of Rio Ruidoso Basin water, and those rights are exercised by diverting surface water to Grindstone Lake and by pumping Hollywood and Cherokee wells. The Ruidoso Basin rights represent real water, and since the Village of Ruidoso is near the headwaters of the Ruidoso/Hondo river system, we always have excess Ruidoso Basin water passing by, both in the river and in its underground aquifer. The excess above the 486 acre ft/yr belongs to downstream rights holders and is not ours to take.

Effluent credit, estimated at 800 acre ft/yr in the water plan, is a variable water right related to Eagle Creek surface water diversion. Its historical maximum was 323 acre ft/yr (1991), but the average is about 150 acre ft/yr. Real effluent credit (as opposed to estimated effluent credit) is a true water right and can be diverted from the Rio Ruidoso Basin and actually realized as water for municipal use.

Taking the water plan figures literally, our total rights amount to 8,432 acre ft/yr. It is clear, however, that the terms "Sustainable Capacity", "effluent credit", and "water rights", as used in the water plan, are meaningless.

If we substitute a more useful expression such as "Reliable Water Rights" based on historical average diversions of Eagle Creek, Ruidoso Basin, and effluent credit, Ruidoso’s inventory of rights drops precipitously from 8,432 to 1,870 acre ft/yr. This much reduced figure, the historical average, represents what should be a reasonable expectation of the amount of water that Ruidoso can capture in any year, but the actuality can be even worse. Meteorologists remind us that "climate is what you expect; weather is what you get", and in the drought year 2003 (for example), Eagle Creek well fields produced only 743 acre ft plus 33 acre ft effluent credit. This suggests a worst-case category of "Drought-Reliable Water Rights" with the 2003 total falling to 1,262 acre ft. The table on the following page compares the plan’s nominal rights with more realistic estimates of reliable water rights.

Village of Ruidoso Water Rights, Acre-ft per Year

Nominal Water Rights

(from 40-year Water plan)

"Reliable Water Rights"

Average

Drought (2003)

Eagle Creek

7,146

1234*

743*

Ruidoso River Basin

486**

486**

486**

Effluent Credit

800

150

33

Total

8,432

1,870

1,262

*Water rights actually exercised by production. Production limited by availability

**Legal limit to production – 5-year average

Ruidoso needs to produce about 2,000 acre ft/yr of water to function at all with its current population, and it takes 2,200-2,300 acre ft/yr to avoid constant and intrusive limitation of outdoor watering. This means that we need to increase our Reliable Water Rights by about 200 acre ft/yr to keep the taps flowing in an average year without regularly overdrawing our Ruidoso River rights account. We need at least a 400 - 500 acre ft/yr increase in Reliable Water Rights to be comfortable and secure in an average year without even considering an additional allowance for population growth.

Since the Eagle Creek well fields produced only 743 acre ft during the serious drought year of 2003, the difference was made up by diverting 847 acre ft from the Rio Ruidoso Basin, about 74% more than our annual Rio Ruidoso right of 486 acre ft. This means that the village was kept operative last year only by borrowing against its future. Similar overdrafts have been taken every year since 1998 – including the current year. Water rights are granted in five-year blocks to allow some flexibility, and we are permitted to overdraw during any given year, but the loss must be made up in ensuing years with a final reckoning in the fifth year.

Now, that reckoning has overtaken us. The five year cycle for Ruidoso River Basin rights ends Oct. 31, 2006, but we have overdrawn prior years to the point that (as of May 31, 2004) we have only 92 acre ft of Ruidoso Basin rights left until Nov. 1, 2006. This means that we have something like a 900 acre ft immediate deficit of reliable water rights in addition to our systemic annual deficit of 200-500 acre ft/yr. How this shortage will work itself out, we do not know, and it is not addressed at all in the water plan. We should probably shelve our interest in exotic water sources (Bonito and Tularosa Basin water) and direct money and effort to increase our inventory of reliable Rio Ruidoso water rights by lease or purchase of agricultural rights. It would also be helpful to put the Links on treated effluent as quickly as possible (using a package treatment plant positioned nearby) and move those rights to the municipality.

Finally, real-world planning requires reasonable accuracy in the most fundamental and basic estimate of all – the growth rate of Ruidoso’s population. Regrettably, the Water Plan estimate is unrealistic. The projected growth rate is 2.7 times the US population growth rate and even 66% higher than India’s. In order to serve the 2044 population, the plan contemplates a need for 7,466 acre ft/yr by 2044. This would require us to secure the impossible total of about 5,600 acre ft/yr of new reliable water rights.

To summarize, far too much of Ruidoso’s 40-year water plan is a parade of bloated and deceptive numbers which provide no basis for real planning. Nor does the plan project any sense of urgency. Given the size of Ruidoso’s deficit of reliable water rights, village administrators may be forced to redirect near-term water planning to supply side deficit control instead of cultivating open-ended and ever-increasing demand. In the short term, we do not have sufficient reliable water rights to support Ruidoso’s current population. Rigorous conservation and loss control will help, but temporary constraint on new water connections seems unavoidable.

Ben Mason, July 11, 2004

The Ruidoso River Association

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