Forbearance Issues

Substituting money for water will never be a sustainable solution to insure the health of the river and its ecosystems, farms and ranches, and the generations to come. Yet, the increasing reliance of the Subdistricts to implement what is called “forbearance agreements” has raised more questions than have so far been answered.  What is forbearance?  How does it work?  What are the effects on the river?  Who gets paid?  How do we decide who qualifies for forbearance agreements on a given day?  How are other water users and the environment impacted?  Can I enter a forbearance agreement with some other organization?  Do forbearance agreements have to go through water court?  These and a host of other questions have not been adequately discussed, but the whole community needs to be involved as we do.

Forbearance agreements are a mechanism that Subdistrict 1 has implemented as a substitute for replacing its depletions to the river.  The wells in the Subdistrict have caused injury to the flow of the river for decades and continue to even now.  One of the court mandated roles of the Subdistricts is to replace those injuries, a practice commonly referred to as making the river “whole.” It is important to note, however, that the concept of making the river whole does not address the adjacent streams and the larger hydrology of the Rio Grande corridor.   On a given day the computer model used by the State determines how much the river has been lowered by past and current pumping.  That “missing” portion of the river would have been the rightful diversion of some specific person.  Ideally, the Subdistrict would release that amount of previously purchased water from a reservoir so that it is available to the owner for diversion.  The river and the individual water owner would then be “whole”, undamaged by the pumping of wells.  Purchasing and storing this water is an expensive proposition.  As an alternative, the Subdistrict is increasingly relying on forbearance agreements.  Dictionary .com defines forbearance as “abstaining from the enforcement of a right”.  Under these agreements the owners of the damaged right agree to forgo their right and are paid by the Subdistrict in cash rather than the water they are entitled to divert.  No water is released from the reservoir storage that day to replace injuries.  This then reduces the amount of “wet” water that the Subdistrict needs to purchase and store to replace those injuries.

In many cases the injured water owner is also a well owner in the Subdistrict.  In those cases it makes financial sense for the owner to forgo his water rather than pay the Subdistrict to buy water to replace the injuries caused by his well and then deliver that water back to his own headgate.

It is important to note that although the individual water user may be satisfied, neither he nor the river has been made whole.  (Some individual farmers may not be satisfied, but their canal company has decided to join an agreement.  They are then included despite their wishes.) When a water right is diverted, that water flows from the headwaters all the way to the headgate providing hydrologic, ecological, recreational and aesthetic benefit as it goes.  Most of these benefits are not recognized as legal rights but are, nonetheless, vital to our local economy and landscape.  Once the water has been diverted into the ditch, it helps carry along the other water and shares in the ditch losses due to evaporation.  In its absence all the other shares of the ditch must bear the shrinkage to a greater degree.  Finally, once a water right has been delivered to the farm or ranch, it is not entirely consumed by the plants.  The unused portion finds its way back into the hydrologic system where it has already been appropriated and historically used as another water right.  When a farmer sells his water rights to another interest (say a city), that interest is not allowed to divert the entire amount of water that the farmer leaves in the river.  Some water is required to be left in the system to mimic the historic return flows and responsibilities of the original right.  In contrast, when the Subdistrict operates under a forbearance agreement it has already diverted the entire amount of water involved through its members’ wells.  It then pays the individual water owner for the water he declines in cash.  No water is released to the river that day.  No additional water is available to the fish and anglers.  No additional water is available for recreation or riparian habitat.  No new water flows into an already depleted aquifer supporting the wells of the Subdistrict.  Most Important, the missing water provides no return flows to the system that support other vested rights.  Rather than making the river whole, the river is permanently diminished.  The aquifer and delivery canals operate under increased stress.  Only the bottom line, measured in dollars, of the Subdistrict and the canal companies improve.  Hydrologic conditions continue to deteriorate as pumping continues unabated with money attempting to repair damage that only water can heal.