Fair water policy

Dear Editor,

30 years ago, 1982, there was abundant river flow from the (URNRD) Upper Republican Natural Resource District to furnish several irrigation districts, more than enough to meet all compact requirements, have the lakes full for recreation and have a lot of ground water irrigation even in a dry period for surface water project down river and some irrigation wells in their district. This article is to point out what the main stream of the Republican River has become. The Frenchman and Republican rivers are now totally dry in the summer with barely a trickle for surface irrigation from the URNRD. This was caused by over development of irrigation. Even though the URNRD has aquifer depletions 60 to over 70 feet, the areas east of the Colorado border and a few miles north of the Republican River they have put in their pumping project which still has abundant underground water on the north side of the project and gets more abundant as you go northeast. No water can flow south of the Republican River underground as there is a ridge blocking flow just north of the river. The latest pumping project the NRD's are doing will increase the lack of surface water for the Republican and probably the Platte Rivers in periods when pumping is not occurring, unless sustainability of the aquifer is mandated. Omaha & Lincoln water ran short this year because the Platte was almost dry. The NRD's pumping water into the Platte is not a viable long term solution for having water for Omaha & Lincoln or to meet the restrictions for previous agreements.

U.S. Geological Survey Water-Resources Investigation 78-38 Pg. 144 stated "Surface water runoff as overland flow is negligible and ground water discharge to streams account for most stream flow leaving the area." This holds true for the whole basin. The following are some facts that will let you decide. Ground water pumping in the URNRD has taken most all the ground water seepage into the stream and rivers which is required for compact compliance. Pumping ground water to meet compliance is not a long term solution. Stopping the decline of the aquifer in the basin should be the primary goal.

The following shows the effect of what over development of irrigation wells had on stream flow. AF = acre feet. The Frenchman creek and Stinking water flow near Palisade in 1962 was 128,282AF, 1972 was 83,470 AF, 1982 was 65,517AF, 1992 was 48,287AF, 2002 was 24,066AF. Canal depletion-diversion from Palisade to Culbertson 1962 was 36,090AF, 1972 was 51,709AF, 1982 was 33,729AF, 1992 was 20,845AF and 2002 was 9,775AF. The Frenchman creek outflow near Culbertson 1962 was 115,107AF, 1972 was 51,762AF, 1982 was 44,160AF 1992 was 41,120AF and 2002 was 16,403AF. In 2012 the river went bone dry at Palisade very little diversion in the canal and bone dry at Culbertson. Out flow from Enders dam in 1962 was 49,514AF. 1972 was 36,766AF. 1982 was 22,491AF, 1992 12,158AF, and 4,582AF in 2002. The return flow from the surface water irrigation from Palisade to Culbertson for 1982 was 12,372AF. For 2012 basically all the above numbers will be at or close to 0.

On January 10, 2003 I received from the Kansas City FSA office the FSA certified irrigated acres for all counties in the Republican were 295,672.3 FSA certified irrigated acres including 4,651.7 prevented planting acres. In 2003 the MRNRD had 299,938.6 FSA certified irrigated acres including 10,603.1 prevented planting acres. The prevented planting acres were surface water acres had no water. Roger Patterson, the DNR director recommended using the 1998 period thru 2002. Instead the MRNRD made a rule 4-6.4 "No later than January 1, 2004 each owner or operator of a regulated irrigation well shall certify (1) the well registration number for that well, (2) the number and location of all acres irrigated at least once by that well between January 1, 1993 and December 31,2002, (3) the maximum number of acres irrigated by that well in anyone (1) year within that time period, (4) the number and location of all acres irrigated by that well in 2003." A lot of acres were added to existing wells and a lot of abandoned acres prior to 1998 were put back into production in 2003. A lot of surface water acres have since been abandoned as their certified acres cannot be transferred to a ground water use. In 2005 the MRNRD showed 313,605.25 total certified acres.

The MRNRD allowed transfer of certified irrigated acres. A lot of these transfers were for money. Most of the transfers came from acres that had originally been over developed, over certified to begin with, wells that never had capacity to start with or as the water table dropped, especially after the surface water irrigation stopped where an artificial mound had developed after up to hundred years of surface water irrigation were transferred to an area that had an abundant aquifer. Allowing the transfers increased the consumptive use of ground water dramatically in the districts. It is my feeling that even though that water that belongs to the people of Nebraska for their beneficial use, as it has now become a property right as the NRD's and individuals have been buying and selling certified irrigated acres rights and water with the state DNR knowing this for several years, is a property right. The definition of property is anything of value or something that that which a person owns. The constitution of Nebraska states; "C I-21. Private property compensated for. The property of no person shall be taken or damaged for public use without just compensation therefor". The position the NRD's have taken are, ground water belongs to the state, however it is common knowledge that it has been and is being bought and sold by individuals, NRD's and now several NRD's. There were even water brokers arranging the transfers/sales at the NRD meetings. This has allowed areas in one part of a district using the water and another area being deprived of that water. Since the NRD's will not stop the depletion of the aquifer, that project will continue the depletion of stream flow that will dry up more wells and loss of available water in the mainstream of the Republican River or enough water to meet the compact requirements short of pumping it. Valuation and trade will decline rapidly in the mainstream of the river and I feel any town, city or county in the mainstream of the river will face severe financial limitations along with farmers and property owners

In the confines of the rivers, farms are generally owner operator or individual tenant operated. You do not have the large land developer or investors like the single operation the NRD's purchased of 19,500 acres. There are more in the basin.

The URNRD has purchased over 8000 acres east of the Colorado border a few miles north of the Republican River to pump water in Rock Creek which directly flows into the Republican. This water can only get to Harlan county lake by shutting off the response areas along the Republican River valley from the Colorado border to Harlan County dam. The MRNRD purchased the surface and ground water rights from the small private Riverside Irrigation District which will most likely require the Frenchman response areas to be shut off in order the get the water. Now the NRD's have purchased the large block of wells and will pump it into the Platte and the headwaters of the Medicine Creek. In order to get the water to Harlan County Dam will most likely require the response area to be shut down on the Medicine Creek and water passed thru Cambridge Dam.

The MRNRD IMP located on the MRNRD website shows their IMP. Maps on pages 25 & 26 show the response areas; also on page 9; "During Compact Call Years, the MRNRD will seek to implement management actions (such as surface water leasing, ground water leasing, augmentation, etc.) to ensure compliance with this IMP. These management actions will be implemented through the authorities granted by the Nebraska Ground Water Management and Protection Act, Neb. Rev. Stat. §§ 46-701 to 46-753. Details of such management actions will be provided to DNR by January 31 of each year for evaluation. If such management actions are insufficient to ensure compliance with this IMP, the MRNRD will in the alternative to management actions, implement additional ground water controls and regulations to make up for its proportionate share of any expected shortfall as identified in the annual forecast and described in Section X of this IMP. Such additional control will include but not be limited to restriction or curtailment of ground water pumping within the Rapid Response Region of the MRNRD and restrictions on ground water pumping in all other sub areas of the district." My opinion is that our response areas in the Republican basin will now be shut down like the last water short period of 2002 to 2007 next year and beyond until we receive a major flood event. The state had a grace period till 2005 to get into compliance after the 2002 ruling. Who knows how long the shutdown will be this time. The shortage of 2005 & 2006 is what the latest trial with Kansas was for.

In 1975 the legislature passed LB 577 allowing the NRD's to manage ground water with controls and regulation of ground water to prevent depletions and shortages. It was a good bill but took too long to implement It was 3 years after passage before it was approved by the DWR and got put in effect, which an allowed 296 additional wells to be added in the URNRD.

In 1981 hearings were held on LB 375 but the bill could not get out of committee. Well drillers and irrigation suppliers all testified for what became LB 375. The general public was against it. In 1982 some eastern Senators took it directly to the floor. Basically it was felt the advancement of new irrigation was being stalled by LB 577. Just prior to LB 375 to advance E&R the URNRD and the Twin Platte NRD stated it was a bad bill. Senator Vickers who represented our area along with Senator Hoaglan and Senator Beutler were against it. The bill basically took all restrictions off drilling wells. Senator Kremer stated "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 the United States of America. I move to advance LB 375 to E&R." With 29 yes 4 no. This was done for economic gain.

In 1993 I was asked to speak to a group, I think it was legislators, in either Kearney or Grand Island. Two others spoke first, one from Alma and the other from NPPD. We all said basically said the same. One of the persons, probably a Legislator said after I was done, why should we worry about the Republican basin, it doesn't have the population of Hall County, 3 years later they passed LB 108 without funding. Even though Dan Smith states there will probably not be a shutdown of the response areas, I believe there will be and both the rapid and quick response area's are listed and shown in the MRNRD IMP. I also believe it won't be for just one year. The NRD's have the option to go sustainable, but not the votes. The MRNRD have the option to treat the wells drilled after 1998 different and the NRD's have the option to restrict all wells constructed after January 1, 2001. Purchase of this water without going sustainable will allow the response areas to be shut off and dry up the Republican River valley. I seriously doubt if there are any plans to pay just compensation to those who have or will lose their surface and ground water. Up to this point they have just taken the surface water with over development, yet all those that were in the irrigation districts still have a State requirement obligation to pay the operation & maintenance for the cost of the dams and canal system to the irrigation districts, if you don't by state law your land will be sold for that assessment. Kansas and Colorado had put on moratoriums by 1980 but our state legislation allowed-granted, with the passage of LB 375 in 1982, the depletions of the aquifers. Surface water is controlled by what became the Department of Natural Resources which had no authority or control over ground water. The person in charge of what became the Department of Natural Resources when LB375 was passed the stated goal was to pump the sucker till its dry and got chastised harshly, but it was the truth. The long term goal of NRD's became to extend the ground water reservoir to the greatest extent possible consistent with beneficial use of the ground water in their individual district with no concern about their neighboring district. Section 46-703 "(4) The Legislature recognizes that ground water use or surface water use in one natural resources district may have adverse affects on water supplies in another district or in an adjoining state. The Legislature intends and expects that each natural resources district within which water use is causing external impacts will accept responsibility for ground water management in accordance with the Nebraska Ground Water Management and Protection Act in the same manner and to the same extent as if the impacts were contained within that district; (5) The Department of Natural Resources is responsible for regulation of surface water resources and local surface water project sponsors are responsible for much of the structured irrigation utilizing surface water supplies, and these entities should be responsible for regulation of surface water related activities which contribute to conflicts between ground water users and surface water appropriators or to water supply shortages in fully appropriated or over appropriated river basins, subbasins, or reaches;" This has not happened.

There were formal requests before the Middle Republican Natural Resources District board to protect the surface flows in the rivers in accordance with the provisions established with the criteria set out with the passage of LB-108 and statue 46-656.28.

Even if a mandatory mandate to require sustainable aquifers in Nebraska, the lag effect of previous pumping will still lower the aquifer for a period of time. Kansas Oklahoma and Texas all waited too long before they put in restrictions.

The state officials have known the NRD's and individuals were buying and selling water via transfers which has increased considerably more depletions in the aquifer, then if transfer's hadn't been allowed, except for in the proximity of the original well. In the Nebraska statues, chapter 46-739 section for Management area; controls authorized; procedures for a management area there are 21 may do and 3 shall do of what NRD's can and have to do.

The courts might have to determine if this is a taking of property rights. There could be one or more major lawsuits when the shut down occurs for the response areas and letting the others pump and continue to deplete the aquifer unless they are forced to go true sustainability and treat all irrigators equal after shutting off wells drilled after the settlement on December 16, 2002 and those added irrigated acres that were not irrigated in the 1998 to 2002, but could have been from 1992. Each NRD should receive the same per acre allotment for only certified irrigated acres and not what was irrigated outside of the 1998 to 2003 or called irrigated.

Claude L Cappel

McCook, Nebraska