Friends of the River respond

Response to Omaha World Herald Editorial, 10/30/07

We appreciated your willingness to explore with your readers the question of the constitutionality of the property tax provision of LB 701.  However the implication of your editorial is that the problems in the Republican River Basin are the fault of the water users in the Basin.  The reality is that overuse is due to state actions and inactions. 

First, the relationship between surface water and groundwater has been well understood in this state since the early 1900s.  Robert Willis, the then head of the agency which was the predecessor of today's Department of Natural Resources, wrote papers on its existence in the North Platte River Basin in Nebraska.  Later, the state was cautioned when the Republican River Compact was made that there was only a limited amount of water that could be pumped out of the aquifer.  Also, there were studies done in the 70s that accurately predicted just what has happened to the aquifer and river flow.  The state has possessed these studies since they were created.  The failure of the State of Nebraska to incorporate this accumulated knowledge into state law certainly is not due to any actions of the Republican River irrigators.

Secondly, it should be acknowledged that "groundwater" irrigators in the Republican River Basin, have used their water in accordance with state permitted wells and in conformity to state approved rules and regulations that were adopted pursuant to groundwater management plans subject to state oversight for many years.  Thus these irrigators were acting legally.  Their actions were no more unlawful than a homeowner's watering his lawn.  Moreover since the settlement of the lawsuit brought by Kansas, users in the Basin have used less water than the State of Nebraska asked them to.

Third, nearly 70 years ago, the United States Supreme Court decided that states have the legal authority to take whatever actions are necessary to comply with an interstate compact that it is a party to.  Therefore Nebraska has always possessed the authority to regulate all water users in the Republican River Basin to comply with the Republican River Compact since the day it was adopted, an authority it has refused to exercise. 

Fourth, in regard to the basin, some farmers who have groundwater available for irrigation under their land, cannot irrigate because of moratoriums that were placed on new wells as far back as 1978.  There are many hundreds of thousands of acres used by farmers and ranchers that do not irrigate.  Additionally tens of thousands of acres that have appropriated surface water rights no longer have water available for irrigation because the State failed to protect their appropriations.  By State law those irrigators still have to pay for operation and maintenance costs of the canals and dams built to store water that no longer accumulates.  Under LB 701, even if these people use no water they will have to pay the new property taxes.  However there is also a portion of an NRD within the basin that has irrigators but is not subject to the new tax created by LB 701.  Altogether, the property tax lacks fundamental fairness.

Fifth, the World-Herald's choice of inflammatory words such as "the happy knowledge", "shell out" and others does not help in a reasoned discourse on a difficult topic.  Our efforts have been to ask the Supreme Court to examine the State Constitution, precedents from prior decisions, the undisputed facts and U.S. Supreme Court decisions on compacts.  Our belief is that the law is clear that compliance with the Republican River Compact is a State obligation and the property tax in LB 701 is an attempt to shift the state's obligation to a local property tax on a small portion of the population, contrary to the State Constitution.  Senator Christensen's suggestion that the State cannot or will not accept its obligation should the tax be found unconstitutional is in stark contrast to the millions of dollars in higher-than-expected State revenues.

According to the Nebraska Constitution, the state should live up to the obligations it created when it entered into the Republican River Compact and it should do so in a lawful manner.  It certainly cannot be wrong for taxpayers to challenge the tax LB 701 imposes on them, but that will be a decision for the courts to make.  After all there is no good excuse for the legislature imposing an unconstitutional tax.

Angus Garey

Tom Kiplinger

Claude Cappel