Letter to the Editor

More analysis offered on Republican River arbitration

Thursday, July 2, 2009

Steve Smith of WaterClaim.org issued the following analysis of Tuesday's decision issued by the Republican River Compact arbitrator:

I have read through the 74 page ruling by the arbitrator regarding the Republican River Basin. This is a more detailed analysis of his ruling. The short version is that the arbitrator ruled in favor of Kansas on most issues with the exception of a couple of key ones. In Nebraska's favor, he found that Kansas was asking for more than is necessary when it demands all wells within 2.5 miles be shut off and he also found that Kansas did not prove how much financial damages it had suffered. In spite of these favorable findings, he has left open the question of what the damages will be and has indicated that they could be in the millions. More importantly he has found that Nebraska is likely to fail to comply with the Compact in dry years and while he finds that Kansas asks for more than the minimum necessary on the number of wells to be shut off he also finds that Nebraska is significantly underestimating what is required. As a result, irrigation restrictions greater than what Nebraska has proposed but less than what Kansas asked for is recommended. He does not define what that middle ground is. However, he does indicate that the current reductions in pumping that the NRDs have agreed to will provide some long term benefit and that is what reduces the need to shut off everything within 2.5 miles of either side of the stream.

Based on our research the benefit provided from the pumping allocations adopted in 2007 is minimal so instead of the 2.5 miles it might be closer to the 2.4 miles. The arbitrator does not use that number and it is only an example but illustrates the point that the arbitrator says Nebraska is underestimating what it needs to do by about 20,000 to 30,000 acre feet if things were to turn dry again. That estimate matches our estimate.

Karl Dreher is the arbitrator and says that he believes that Nebraska State officials understand the requirement to comply but he does not feel that the NRDs understand that requirement. He says paying cash anytime there is a failure is not an acceptable option. He mentions the idea that the NRDs are a creation of the Legislature and it might be necessary to eliminate or take allocation power from the NRDs so the State can control the issue if that becomes necessary.

Dreher recommends that Nebraska set a lower allocation for groundwater irrigation and also secure guaranteed water leases from surface irrigators. He does not address the idea of augmenting the stream. The big surface irrigation districts have indicated that they will not agree to any permanent sale of their water rights. Frenchman Cambridge and Bostwick control the majority of the surface water and are strongly opposed to anything that requires them to lose control of their access to water. Riverside and the other small irrigation districts are willing to sell but they have so little water that their position is of minimal impact. I believe that it is critical that Nebraska and or the NRDs find a way to secure control of surface water when it is needed. Senator Langemeier has commented on a way to do this and as he is the chair of the Natural Resources Committee is in a position to cause it to happen.

Dreher does not indicate how much he believes the allocations for ground water users needs to be reduced by. He does, however, recognize that any reduction in allocation takes a very long time to have a benefit to the stream and says that modifying allocations only when things are dry is ineffective. I agree, and have felt that the State and NRD contention that this would work to be damaging to their reputation.

Dreher proposes to reduce allocations so that there is a need to buy less surface water or augment the stream less during dry spells. But as we have repeatedly pointed out, this is the most expensive option possible and the most disruptive to the community. It is far less expensive to purchase water as needed while maintaining pumping levels that permit the economy to pay for the changes needed.

The arbitrator does not impose any solution to the problem. He leaves it up to Nebraska to create a solution and basically says that if Nebraska stays in compliance then how Nebraska complies really doesn't matter. He recommends lower allocations and surface water control but doesn't require it.

Dreher rejected the Nebraska position on evaporative losses on Harlan. Nebraska had argued that if Nebraska did not use any water from Harlan then all of the evaporation should be assigned to Kansas. Average Harlan County Reservoir evaporation is about 38,000 acre feet. About half of that is charged against Nebraska. Nebraska had tried to shift its share to Kansas, the arbitrator said no.

Nebraska argued that the accounting points should be shifted around to match some of the actual stream gage locations. Dreher rejected the Nebraska argument.

Nebraska showed that when the streams are physically dry that the Model reports Nebraska uses more water than what actually exists. Colorado and Kansas both countered that Nebraska was aware of the issue when it agreed to the Settlement in 2002 and that what actually happens is that Nebraska is mining the groundwater and delaying the return of surface flows so it is proper to show a negative number in the Model. Dreher rejected Nebraska's proposed solution as being flawed but recognized that the issue needed more attention and recommended that the technical committee do a detailed review of the issue.

Nebraska did not raise a question about any of the flaws that we have found in the Model even though some of them have significant ramifications.

According to the arbitrator, Nebraska proposed moving the accounting point on the North Fork of the Republican to the border of Nebraska/Colorado. I can't think of a good reason for Nebraska to make this request as it makes Nebraska responsible for any seepage between the State line and the current accounting point. It is very likely that during dry years that the entire amount of water received from Colorado will fail to get to the next accounting point and that Nebraska will be liable for the entire amount of water. This is the only movement of an accounting point that Dreher agreed with and it is one that could significantly hurt Nebraska. I had understood that Nebraska was aware of the issue and was arguing against the Colorado augmentation pipeline for this reason. Apparently not.

Dreher seems to say that even though Nebraska was out of compliance during the dry spell that a financial penalty is all that is necessary now but warns that any future failure to comply would result in large enough penalties to persuade Nebraska it is better to comply than to pay the damages. The State of Nebraska will probably consider this to be a very good recommendation. It minimizes the money paid by the State and moves the burden to the local community in the form of lower allocations. However, Kansas will probably not find this to be acceptable and will probably appeal this to the US Supreme Court. Kansas wants penalties to be in place now not in the future. Kansas wants reductions in groundwater pumping to be forced now not later.

In my opinion, Nebraska would probably accept the arbitrator's ruling as is because it doesn't require Nebraska to do anything now though it threatens problems for the future. Kansas will probably be the State to appeal first which will then permit both States to argue every issue again. So even though most of the findings were in Kansas's favor, the State of Nebraska will probably find the arbitrator's ruling to be acceptable. Note, that it is the State of Nebraska that will probably feel that way. The NRDs may not be as happy with the ruling but the NRDs are not in a position to challenge. That is the responsibility of the State.

As the issue appears destined to the US Supreme Court, the risk to ground water allocations remains. There are options available that would permit the allocations to be stable but so far the interested parties have not been able to make any of the alternatives happen.

I think it is critical that the NRDs put in place the augmentation programs so that when it does turn dry again that the stream can be supplemented so that there are alternatives to being extorted by surface irrigators or being forced to ineffectively reduce allocations. Perhaps you can persuade an NRD board member to adopt that approach before someone else makes the decision for them.

I am not aware of any way of getting the flaws that we have found in the Model to be discussed outside of persuading the DNR or the Nebraska Attorney General to make it an issue. So far, both have declined to even acknowledge the problems. The elected officials could put pressure on these parties but the issues appear to be too complex for the political type to spend a lot of time with. 

More information is available at http://waterclaim.org

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