Josh Friesen's open forum is trying to shift the blame of non-compliance of the compact for the Republican River Basin to manager Brad Edgerton of Frenchman Cambridge Irrigation District. The subject of the Kansas vs. Nebraska lawsuit is whether or not Nebraska's water policies and the administration of such have been effective in keeping Nebraska in compliance with the agreement signed in 1943. Edgerton played no role in either writing the policies or enforcing them.
Friesen, on the other hand, did have the opportunity to administer water policy as chairman of the MRNRD board of directors for 4 years.
Brad said he was subpoenaed by Nebraska and basically has to tell the truth when answering a question. His answers were only in relation to protection of the irrigation districts and trying to have water surface water. In Nebraska, the legislature has given the NRD's the authority over the aquifer. The director of the Department of Natural Resources (DNR) only has authority over surface water and can only request the NRD's to do what they feel is necessary.
Recently it appears the state pressured at least some the Republican Basin NRD's to accept an Integrated Management Plan (IN4P) with few options after the first NRD adopted theirs.
I have heard the three choices of the IMP came from the state government, which is interesting.
In June of 1978, a U.S. Geological Survey, Water-Resources Investigation 78-38 was completed, showing the effects lowering ground water levels and the depletion of surface waterflows. The objective of the investigation was to develop management plans determined by the NRD to meet specified objectives under the authority given them by the Nebraska legislature. It was presented to the Upper Republican Natural Resources District and the University of Nebraska and Institute of Agriculture and Natural Resources with two predicted results, one was for no additional irrigation well installation after 1976 and the other was with continued irrigation well installation at the 1970-1975 rates.
Either way with the above scenario, base flows in the river would decline but continued development would have the Frenchmen almost used up by 2000. The development of new wells occurred. The report also stated on page 142: "Stream-flow depletions due to diversion by wells of natural ground water discharge under both tested futures will reduce availability of water 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 water 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 of the provisional grants from Frenchman Creek above Enders Reservoir were exercised only to irrigate lands within the district, they would equal the average 1968-75 flow at the gauging station near Imperial (table 13). On Pg 141 "The total annual un-depleted flow of the Frenchman Creek (prior to 1967) is equivalent to the annual consumptive use from about 290 wells using the same acreage and unit consumptive demands used for the null alternative." On page 144 "consumptive use of ground water for irrigation has caused water level declines and stream depletion in the study area."
In 1999, at the Middle Republican Natural Resources District meeting, I made a formal request to the MRNRD to protect the surface flows in the rivers. I was told that due to the Kansas, Nebraska and Colorado lawsuit, there was nothing they could do, under state orders and the problem was not caused by the Middle Republican Natural Resources District and they had no control over the other NRDs.
After the settlement with Kansas on Dec. 16, 2002, Roger Patterson, the DNR director asked the NRDs to only allow the acres irrigated from 1998 to 2002. In using the FSA records of irrigated acres for the 1998-2002 period, deducting the prevented planted acres because of loss of surface water compared now, the NRDs added/allowed hundreds of thousands acres in additional irrigated acres in the basin including satellite pivot acres, the 1993 through most of2003 period for history and the drilling of new wells. It is all legal and DNR had no authority to do anything to curtail the depletion of the aquifer.
It is my contention that the surface water appropriations granted by the State of Nebraska where there was always more than a totally adequate supply for 85 years and a sufficient supply for 110 years is a vested property right. There was a dependency upon those appropriation and tremendous investments made, even in very recent years. Those rights from the U.S. Government maintained cities, towns, counties, suppliers, landowners and farmers. The O&M and repayment for the dams and canals still have to be paid by land owners in the district with or without water and if not paid, by state statutes your property can be sold to meet that liability the same as property tax and you also have to pay the cost of the districts operation.
It is my contention that the State of Nebraska Legislature knowingly chose not protect surface water property rights, even after it was documented by studies and realized that the pumping of large quantities of ground water from ground water wells was having a dramatic effect upon the sustainable of the supply of water to maintain a river flow. There are plenty of statutes that use the word "may" "intend" "expect" that allow the NRDs to have done things to prevent the point where we are at now. There are very few mandates. I was testifying at a hearing on the water at a meeting in 1993 at Kearney for the LB 108 bill study, one of the committeemen commented Southwest Nebraska wasn't of an enough economy proportion and didn't have as much economics as Hall County to be concerned about.
I have heard several times the ground water pumpers outnumber surface water acres 10 to 1 in the state, and it was best to let the NRDs handle the situation, and for years there was denying there was a connection between ground water pumping and surface water depletion.
Kansas' lawsuit has nothing to do with Brad Edgerton. The burden totally lies upon the state Legislature that was bound by a compact that Nebraska agreed to. They made the permissive statutes and gave the total authority to four different Republican River Basin NRDs. They did not give any authority to the director of DNR or mandate any controls for ground water pumping before or after the settlement. They didn't mandate any protection for stream flow or the ground water aquifers that supply the stream flows.
They let the local NRD make the rules. Depending upon the makeup of the board, the majority has chosen the path of looking out for their own interest. We are now in a time when individuals only look at their own need and not about their neighbor's rights.
The statutes of Nebraska state: Every landowner shall be entitled to a reasonable and beneficial use of the ground water underlying his or her land subject to the provisions of Chapter 46, article 6, and the Nebraska Ground Water Management and Protection Act and the correlative rights of other landowners when the ground water supply is insufficient to meet the reasonable needs of all users.
Claude L. Cappel,