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LB701 rejected
The Nebraska Supreme Court (NSC) ruled on Friday that the property taxes permitted under LB 701 are unconstitutional because it is the responsibility of the State to assure Compact compliance, not the responsibility of the residents of the Republican River Basin. This is a much more significant ruling than the ruling made earlier by the District Court.
This is likely to also render the occupation taxes, also authorized under LB 701, as unconstitutional. They are based on the same foundation as the property taxes. It is my belief that the occupation taxes are simply property taxes under another name. The occupation tax is based on the number of acres a land owner has that can be irrigated. Since the tax is tied to the property someone owns, it appears to be a property tax.
There were a number of water policy officials and politicians who insulted the District Court judge and the plaintiffs, calling their position obviously wrong and a threat to the economy of the region. In my opinion, those making such accusations owe an apology to Judge Merritt, the plaintiffs, and to the public for their hubris. It was the defendants in this case who were issuing the treats to the economy of the region, not the people asking that the Constitution be followed.
Two years ago, the NSC ruled that the State has given control of groundwater use to the NRDs and reserved control of the surface water to the DNR.
LB 962, sponsored by former Senator Schrock, gave the State, via the DNR, authority to veto NRD groundwater plans for any area the DNR decided it wanted to influence. Now, all the DNR has to do is designate an area as fully- or over-appropriated and it gains veto authority over NRD policy. There are no restrictions on how the DNR determines an area is designated. The DNR has, since, designated almost the entire State to be fully- or over-appropriated and, hence, can exert influence that the Court on the Spear T case ruled that they did not have at the time.
Remember that there are areas with big increases in the aquifer and areas with stable to increasing stream flows in the control areas.
With LB 701 gutted, several questions come to mind:
Will the State follow through on its threats to cut irrigation allocations across the Republican River Basin in order to "help the State achieve compliance?"
What will happen to the occupation tax?
How will the LB 701 taxes that were collected already be returned to the people?
Since Compact compliance is a State obligation, what role will the NRDs play?
Will there be a well head or per acre inch fee imposed by the State? Can those fees be selectively applied to geographic areas?
Given that the NSC has said that much of what certain LB 701 advocates said was wrong, who will the Legislature trust as they formulate a solution?
For analysis and answers to these and other questions, visit the WaterClaim site.
Steve Smith,
Imperial