Nebraska legislation permitted present water problems

Dear Editor,

My water knowledge has been acquired from serving on former Governor Nelson and Governor Johanns' Republican Basin Advisory Board during the negotiations with Kansas from 1995 thru 2002. The Advisory Board's first year was predominately education on stream flow, hydrology, Nebraska water law, the compact, along with other state water laws and problems. I also served on the Water Policy Task Force and have spent many hours researching what has happened and why, in the Republican River Basin, utilizing studies, graphs and other information. I know that short of becoming sustainable in our water reservoir - which means no more out of the aquifer than what goes into the aquifer - has and is spelling disaster for the quick response area which will continue to vastly expand. We are now at a time when in normal to drier years there is very little flow of surface water from the URNRD and the surface water flow in the other tributaries to the Republican River has and will continue to decline. When the Kansas, Colorado and Nebraska Compact was entered into, the area of the URNRD is where a large portion of the surface water came from and it was from ground water seepage into the streams.

Contrary to what is being said by some state, DNR and NRD officials about the cause of reduced surface water flow, two studies that have been done by the United States Department of Interior, in cooperation with the Conservation and Survey Division of the University of Nebraska are as follows:

In 1976, Open File Report 76-498 and 1978 Water-Resources Investigations 78-38, predicted with a high degree of accuracy, what was going to happen and did happen to the river flow. The 1976 report shows that 80,000 acre feet of ground water flowed out of the URNRD, underground to the MRNRD each year. The 1978 report stated "Surface runoff as overland flow is negligible and ground-water discharge to streams, accounts for most streamflow leaving the study area. The combined ground-water discharge to the nine perennial streams generated as ground-water discharge within the study area was 126,800 acre-ft/yr under conditions representative of minimal withdrawals of ground water until 1967. Ground-water discharge by evapotranspiration from shallow water-table areas in stream valleys was about 14,500 acre ft/yr prior to 1967 and no detected change has occurred. Streamflow depletions due to diversion by wells of natural groundwater discharge under both tested futures will reduce availability of water to historical users of surface water." "Provisional surface-water grants used to irrigate lands within the study area are listed in table 18. Downstream prior rights to the waters of Frenchman Creek dating back to 1890 are held by irrigation districts in the McCook area. These districts also hold most of the water storage rights in Enders Reservoir. If all the provisional grants from Frenchman Creek above Enders Reservoir were exercised only to irrigate lands within the District, they would about equal the average 1968-75 flow at the gauging station near Imperial (table 13)."

Another USGS study Water Resource Investigation Report 95-4014 dated 1995 for the URNRD and the Nebraska Natural Resources Commission showed the same results except instead of the water table predictions being at the 2010 level they are now at the 2030 level and the area next to Lincoln and Hayes counties are double the decline that was predicted for 2030.

It seems odd that the state does not commission a study for the rest of the basin to understand what is happening. The legislature did give funds from LB 108 for a study, but they were only used to study the alluvial area which indicated nothing of real meaning. I suspect they do not want people to know just what is happening. There are so many things said that are distorting and false. Many have said the Republican River went dry during the summer in some years. True, but it was only in local areas. This was an affect of the several canals and irrigation districts starting in Colorado diverting the water for irrigation. Ground water seepage back into the river from surface water irrigation on its way down the river, allowed it to be reused several times by other canals and irrigation districts all the way down the river. It functioned just like the Platte River Basin.

Even though the legislature had knowledge of the 1976 and 1978 studies, along with the Bureau of Reclamation studies, in 1982 the Legislature passed LB 375, which gave the NRDs the authority to totally deplete the aquifer. The Legislature with the passage of LB 375 allowed ground water irrigators to deplete the water required for the compact requirements and surface water irrigation within that individual NRD. This was done without any regard to the needs of water flow for compact requirement. Additionally, there was no regard for federal and/or state granted irrigation rights of surface water irrigation districts in downstream NRDs.

First in time, first in right was the perceived law prior to passing LB 375. At the legislative hearings on ground water prior to 1982, legislators pointed out that legislation was for protection of prior irrigators and it was the main curtailing factor for irrigation well drilling control. The Upper Republican Natural Resource District had already put on controls granted by the legislative bill LB-577 in 1975. The Upper Republican Natural Resource District, Twin Platte NRD and Senator Vickers' district representing the area east of the URNRD, were unanimously saying that LB 375 was not a good bill. Lee Orton, representing the Nebraska Association of Resource Districts, testified at the hearing "We think the proposal right now mandates a goal and that goal is an actual depletion of the aquifer. I'm not certain that is what everybody wants". The legislature knowingly passed this bill allowing water already appropriated to irrigation districts and to the compact to be depleted from the aquifer. The closing statement of SENATOR KREMER: "I think Nebraska can take care of its water and I think we are going to, if the whole world hangs together, we are going to come forth as the greatest agriculture state in all the United States of America. I move that we advance LB 375 to E & R".

LB 375 was passed for economic purposes. Kansas and Colorado had already placed a ban on new wells and Nebraska had been asked to curtail the declining stream flow. It was known LB 375 would lead to future problems and the senators that were pushing the LB 375 legislation said future bills would be passed to keep problems from happening. That legislation never happened. LB 375's limiting factor was supposed to be "the correlative rights of other landowners when the ground water supply is insufficient to meet the reasonable needs of all users in the basin". Correlative right, as determined by a court case, is everybody shares equal in a shortage. (The owner of land is entitled to appropriate subterranean waters found under his land, but cannot extract and appropriate them in excess of a reasonable and beneficial use upon the land which he owns, especially if such use is injurious to others who have substantial rights to the water. If the natural underground water supply is insufficient for all owners, each is entitled to a reasonable proportion of the whole.) This a quote from the Nebraska court of appeals Springer v. Kuhuns filed October 21, 1997. In the same ruling it also states: "The Legislature has the power to determine public policy with regards to ground water." There is no way to enforce the correlative rights concept since the courts ruled you have to determine how much each irrigation well is consuming of your water. Financially and physically, it is impossible.

FURTHER THE FIRST REPORT OF THE SPECIAL MASTER VINCENT L. MCKUSICK January 28, 2000 stated "Although the hydraulic connection between groundwater pumping and stream flow is already assumed for purposes of this Motion, the further fact that the hydraulic connection was well known by the early 1940s is significant in reinforcing my conclusion that the Compact negotiators did not ignore the effect of groundwater pumping on stream flow. The connection between groundwater discharge and stream flow was a widely known scientific fact well before the Compact was drafted and recognition of that connection is plain from the records of the Compact negotiations." Conclusion: Nebraska violates the Compact if, as a factual matter, Nebraska's groundwater pumping, whether from alluvial or table-land wells, depletes stream flow in the Basin to the extent that Nebraska exceeds its allocated share of the virgin water supply.

The Nebraska Supreme Court has recently Ruled that the "State has an enforceable legal obligation to comply with the compact which constitutes the law of the United States as well as the three compacting States. If a State fails to meet that obligation, it is subject to liability for breach of the compact. The State has acknowledged that compliance with the Compact is the State's responsibility by entering into the final settlement stipulation resolving the litigation which was initiated by the State of Kansas in 1998".

We are now at a point where some entity or individual within the state has given the Republican River NRDs three options. They include taking the irrigation districts surface water, with no compensation and/or shutting down of the DNR designated Quick Response wells with no compensation. DNR has said the Quick Response area can and will be expanded, if needed, to stay in compliance. All three options would allow one NRD to continue to deplete the aquifer. The other NRDs with two of the three plans could also continue to deplete the aquifer. Is this the goal we want to attain?

WHO or WHAT entity is responsible for developing this Republican Basin mandated plan? I know the legislature didn't develop the plan and the DNR is administrating it, but I don't believe DNR has the authority to require implementation. The problem has been caused by prior legislation and the legislature needs to correct it.

Some important related provisions of the Nebraska Constitution are:

CI-16. Bill of attainder; retroactive laws; contracts; special privileges. No bill of attainder, ex post facto law, or law impairing the obligation of contracts, or making any irrevocable grant of special privileges or immunities shall be passed.

The question asked: Is LB 375 enacted in 1982 unconstitutional? Short answer: Perhaps. In combination with subsequent ground water laws, there are provisions that appear to unequally favor groundwater users. There also appear to be subsequent groundwater laws that aid in the unequal treatment of quick response wells of which a large percentage are supplemental wells used for surface water appropriations. Favor seems to be granted to the more recent wells drilled. These laws penalize surface water users raising the issues of due process, equal protection, and unequal treatment. The quick response wells are being shut off so the water they would pump will instead percolates into the stream or river.

CI-21. Private property compensated for. The property of no person shall be taken or damaged for public use without just compensation therefor.

I understand another legislative bill is going to be introduced to allow just certain NRDs, at their discretion, to be able to tax the irrigators in their district to obtain funds to compensate for the taking of water. This concept is constitutionally questionable.

First, until the entire Republican River Basin becomes sustainable, adopting the states plan, will force all irrigators to pay a tax while continuing to deplete the aquifer. This depletion will result in a need to shut down additional wells at a later date as the quick response area expands. Hence, some will have paid the taxes and may still lose their irrigation potential.

Second, the amount of money needed to justly compensate for the taking of the landowner's water is far greater than the tax the NRDs can collect.

Third, there are two statutes that the majority of the irrigators had adhered to in fear of being shut off if they developed additional wells. LB108 statue, passed in 1996, "(6) (b) For management areas a purpose of which is the integrate Management of hydrologically connected ground water and surface water, the district may establish different provisions for water wells constructed before the designation of a Management Area for integrated management of hydrologically connected ground water and surface water and for water wells constructed on or after the designation date or any other later date or dates established by the district". LB 667 passed in 2001, states "For a management area in a basin or part of a basin that is or was the subject of litigation over an interstate water compact or decree in which the State of Nebraska is a named defendant, the district may establish different provisions for restriction of water wells constructed after January 1, 2001, if such litigation was commenced before or on the operative date of this section. If such litigation is commenced after the operative date of this section, the district may establish different provisions for restriction of water wells constructed after the date on which such litigation is commenced in federal court". Both of these statutes were made known at the time of passage. It is wrong to shut off surface water irrigation and quick response wells without just compensation, while allowing those irrigators who drilled wells or added irrigated acres after LB 108 was passed and those who added acres or drilled new wells after 2000 to continue unaffected. Those wells need to be administered different. Those remaining irrigated acres that are outside that time frame should be governed by the correlative rights doctrine equally throughout the basin and not have one NRD give their irrigators a greater acre inch allotment over another NRD. Then, if NRDs want to impose a tax to buy the surface water so that those still irrigating could have additional water allotments, it could probably be justified if all NRDs in the state were given the same opportunity. The surface water buyout money should go equally to all the surface water irrigation district's users on a per acre basis and not only to a specific section of the basin that still has surface water.

If you think it is acceptable to only tax a specific group for a specific reason, or if a court should rule it constitutional, where do you think this practice will stop? Once the door is opened for the taking of property rights without just compensation and that taking cannot be contested, minority interest will get hit hard. At the MRNRD meeting some directors felt it was better to sacrifice the minority water users, which are the quick response and surface water irrigators, for a greater economic benefit of the majority of the irrigators of the district. It would not matter how long a ground water or surface water appropriation had been there. Even though there are all kinds of different classes of property and all have been assessed varying taxes, it would make no difference; all may lose their rights without just compensation. A simple example of what could then be forthcoming is farmers could be taxed for construction and maintaining some or all rural roads. If this is allowed to happen, Katy, bar the door! Certain roads would be closed because it is economically better for the general population to not maintain them. Small businesses could be closed, so the businesses with better locations or more political pull could prosper. This rational gives no credence to the length of time of ownership of a home, business, dryland farm ground, pasture, or irrigated land. Shutting off an individual's ground water pumping or taking their surface water appropriation not only destroys the amount of investment placed in/on the property, but leaves the costs, decreases the value of the land and takes away 2/3 of the income.

With the plan being mandated by the state, it makes no difference that the surface water irrigator has an 1890 water appropriation or an irrigator has a well that was drilled in 1935, they can be shut off with no just compensation. But with the plan from the state, an irrigator who drilled a well after 2000 or the NRD who adopted a management plan after LB 108 and added wells are able to continue to irrigate.

The seriousness of the problem can be summarized by the following. Although not precise, these numbers were given to me by Roger Patterson. Kansas gets 40% of the virgin water supply of the basin and has 400,000 ground water irrigated acres and is barely in compliance. Nebraska gets 49% of the virgin water supply and has 1,350,000 ground water irrigated acres in the basin. He also said each additional 24,000 ground water irrigated acres takes away an inch of allotment in the MRNRD.

As stated earlier, the problem has been caused by prior legislation and the legislature needs to correct it. Not only do the current proposals appear to be unconstitutional, these proposals will not remedy the problem but will only add to our problems.

Claude L Cappel

McCook