The State of Nebraska may meet Compact compliance with Kansas with the surface water they delivered, but will fail to meet the provisions of Articles I and IV of the Compact within their own state.
The states of Colorado, Kansas and Nebraska are to divide the waters of the Republican River Basin between the states, but they are also to divide the waters of their own state. The compact states: "individually as a state." Nebraska has agreed upon the following articles. Article I states the major purposes of the compact are to provide for the most efficient use of the waters of the basin for multiple purposes; to provide for an equitable division of such waters; to remove all causes, present and future, which might lead to controversies.
How is it equitable or not controversial when a surface water irrigator receives no water or two inches and a groundwater irrigator receives his full allocation of nine to 12 inches? Article IV of the compact outlines the allocations for each state.
It reads: "There is hereby allocated for beneficial consumptive use in Nebraska annual, a total of two hundred thirty-four thousand, five hundred (234,500) acre feet of water."
It then lists the sources for and the amount for each drainage basin.
The use of the waters herein above allocated shall be subject to the laws of the state, for use in which the allocations are made. The surface water Nebraska delivered to Kansas was allocated for beneficial consumptive use in Nebraska and was also designated for use in which the allocations are made. Nebraska has not followed the provisions of the compact within its own state.
Our appropriative surface water right was granted by the State of Nebraska. The right to the "use" of the water attaches to the individual's land and became a vested property right at the time of the appropriation. This vested property right is confirmed by the Nebraska Constitution.
A usufructury right in stream water is a protectible property interest. The water itself is not owned. Ownership of waters is in the public. The right to use the water is owned. It is the use of the water that is appropriated. The right to the beneficial use of the water attaches to and follows the land -- it is appurtenant to the land. The appropriative right belongs to the landowner. It is a property right -- a vested property right. It is entitled to protection under the law. United States v. Tilley 124 Frd 850 (8th Cr 19410 City of Fairbury.
The Nebraska Constitutions tates that "curative acts" (legislation, statute, water laws) which attempt to take away property right already vested violate the Constitution. Are the policies enacted by DNR and the NRDs using vested surface water rights to meet compact compliance to cure the problem of over pumping by groundwater irrigators "curative acts" which violate the Nebraska Constitution?
The Nebraska Constitution is also very clear in regard to damages to private property and how it is to be compensated for. It states: "where cropland, no part of which is taken, temporarily suffers compensable damages, the measure of compensation is not market value, but the value of the use for the period damaged; i.e., the value of the crops which could and would have been grown upon the land." Kula v. Prososki: 228 Neb. 692 424 NW 2d 117 (1988).
Where is the equality of allocation, the protection of surface water rights and the remedy for surface water irrigators? Given the policy language of the various agencies dealing with water issues, this was not supposed to be a groundwater versus surface water issue.
The courts will decide whether the surface water irrigators will be compensated for the loss of "use" of the surface water that was delivered to Kansas. There are approximately 100,000 surface water acres, which means the state of Nebraska taxpayers could be liable for 50 to 100 million dollars of damages for the 2013 crop year.