Not to late to face Republican River reality

EDITOR'S NOTE -- The following opinion piece originally appeared in the Omaha World Herald:

By ANN BLEED

Conflict over water use in the Republican River Basin is growing. Continuing down our current path will cost millions of dollars spent on lawsuits, possibly reduce local control in the basin, and squander the financial, human, and hydrological capital we will need to meet the basin's long term water challenges. The formation of the Republican River Basin Water Sustainability Task Force provides an alternative path. Although we are far along the current path, it is not too late to face reality and turn around. What is that reality and what do we need to do to make a successful U-turn?

One reality is that another round of litigation before the U. S. Supreme Court is imminent. In its petition to the Supreme Court Kansas alleged that Nebraska has already violated the Republican River Compact and has failed to take actions necessary to avoid future violations. The final report of the independent arbiter, hired by the Republican River Compact Administration, stated that Nebraska's current Integrated Management Plans for the basin are inadequate and that Nebraska should make further reductions in consumptive ground water withdrawals and obtain contracts with surface water users to maintain Compact compliance in dry years. He also stated that Kansas is entitled to injunctive relief enjoining Nebraska from exceeding its future allocations; that should Nebraska fail to comply with the Compact in the future, sanctions may be appropriate; that a court-appointed river master is premature, but not off the table, and that Nebraska owes Kansas for damages caused by past violations. Hopefully, Nebraska will escape injunctions, sanctions, and the appointment of a river master, but there is no doubt Nebraska will have to pay Kansas for damages. Payments closer to a $1,000,000 than the $10,000 "nominal" value set by the arbiter as a placeholder, are likely.

If we don't amend the Integrated Management Plans, Nebraska's assertion that it has taken steps to ensure Compact compliance will be called into question by the Supreme Court. This amendment process is not going smoothly. There is much disagreement over the proposed amendments adopted by the Upper and Middle Republican NRDs describing new regulations to achieve Compact compliance in dry years. The amendments state that during "Compact Call Years," when additional restrictions are needed to stay in compliance with the Compact, the Department of Natural Resources will close all surface water natural flow and storage permits in the basin and the NRD will curtail pumping by wells in the "Rapid Response Region," an area in which wells have a rapid impact on river flows. There are no additional required restrictions on water use for other wells outside the Rapid Response Area.

The NRDs disagree among themselves over the fairness of these amendments. About 6 percent of the total number of irrigated acres in the Upper Republican NRD would be subject to additional restrictions during Compact Call Years. With roughly 94% of the irrigated acres free of the extra mandatory restrictions, the Upper Republican NRD Board was the first to approve the proposed amendments. The Middle Republican NRD, with roughly 15 percent of their district subject to extra regulations, approved the amendments, but with a split 6 to 5 vote, a one vote margin that could easily be reversed after the November election. With 20 percent of their irrigated acres subject to Compact-Call-Year regulations, the Lower Republican NRD has not yet even reached agreement with the Department of Natural Resources on a proposed plan.

Fairness among water users within each NRD is also an issue. There are a lot of good hydrological reasons to focus necessary short-term management actions in Compact-Call Years on surface water and Rapid Response well users. Most people understand that without such a strategy, we would not be able to make full use of Nebraska's water allocation under the Compact. At issue is the inequity of adopting the current regulatory scheme without any assurance that those suffering the extra regulation will be fairly compensated. To try to avoid Compact Call Years, the Upper and Middle Republican NRD's plans state that, to the extent possible, it is the intent of the NRDs to seek to implement management actions, such as surface water leasing and flow augmentation. The plans also state that, to the extent possible, the NRD will provide compensation to water users that are required to forgo water use. The intention may be sincere, but as those of us who are always intending to start a new diet know, good intentions are not always followed. Thus, there is no assurance that compensation will be paid, nor are there any protocols to ensure the compensatory payment will be fair.

The proposed amendments to the Integrated Management Plans were developed without any real discussion with several key interest groups in the basin. These stakeholders believe their concerns were never seriously considered. Hard feelings and increased distrust with the process have led many to conclude that filing a lawsuit is their only option for relief. Such lawsuits would weaken Nebraska's case before the U. S. Supreme Court.

Another reality is that in spite recent high rains, water supplies in the upper part of the basin are declining. Precipitation ranged from 115% to over 150% of normal in the years of 2008 and 2009. Yet, according to the U. S. Geological Survey, the stream flow in these years was lower than 90% of the historically measured annual flows and current water levels in the majority of the Survey's monitoring wells remain at historic lows. These declines threaten the surface water supply needed to comply with the Compact during dry years as well as the water supply needed by surface water irrigators and the Bureau of Reclamation projects. More importantly they threaten the survival of irrigated agricultural in the upper half of the Republican River Basin. Reducing current water consumption, particularly in areas with declining water supplies, is necessary to ensure there will be water for irrigation by future generations.

At this point in time it is unlikely that Nebraska will be able to avoid costly litigation with Kansas. However, if we act quickly and effectively, we could avoid litigation within the state, increase Nebraska's chances of convincing the Supreme Court we are serious about Compact compliance, and develop a plan to sustain the agricultural base of the economy of the Republican River Basin.

Thanks to the hard work of Senator Tom Carlson, from Holdrege, the legislature created the Republican River Basin Water Sustainability Task Force. The purposes of the task force are to define water sustainability for the Republican River Basin and develop plans to help reach sustainability and avoid water-short years under the Compact. The task force is to provide a final report to the governor and the legislature before May 15, 2012.

The task force has a steep path to climb. Success will require that task force members and their constituents make a sincere effort to listen and understand the concerns of all stakeholders, and be willing to truly collaborate to address all stakeholders' bottom-line interests. The State as a whole also needs to be actively involved. Funding from the State should be made available to support research and the adoption of agricultural methods that can further reduce water consumption without reducing crop production. Funding should also be set aside to help implement projects recommended by the task force. If sincere collaboration is achieved and funding for the resulting plan is provided, there is a good chance we can develop a plan, which if not loved, would at least be acceptable to most stakeholders.

As a State, we have a choice. We can continue down the current litigious path, which includes assigning blame over past misdeeds. Alternatively we can develop the political leadership and will to rise above the conflict, reach across the current divides, and do what is necessary to implement a plan to both maintain Compact compliance and the agricultural economy of the Republican River Basin. Both alternatives are costly, but collaboration provides the best chance for a favorable long-term outcome for both the people in the Republican River Basin and the entire State of Nebraska.

-- Bleed is former director of the Nebraska Department of Natural Resources.