Upcoming water costs

In the next few months the NRD board will be making decisions that could cost people of the district many millions of dollars. In the past, when large numbers of irrigators have gone to the NRD meetings, they generally got what they wanted. You can also have an impact because of the different options the NRD has. The NRD board now has full authority to levy taxes upon you at their budget meeting and procure bonds that could take a good share of your life to pay off. It's time for those landowners who don't irrigate, those irrigators in the quick response areas, those who wells are being dried up, those who don't want to see the streams, rivers and dams dried up, and those irrigators that never expanded their acres after 2002 to go to the meetings and let the board know how you feel. The MRNRD meeting is the second Tuesday of the month, rotating between Curtis and McCook. It is usually at night. In McCook the location changes so you need to look at their web sight. http://www.mrnrd.org/. They also have special meetings and only advertise in the legal notices. Their agenda does not inform you what they will be talking about, so you need to go to the meetings.

My feeling is, any buyout of ground water irrigated acres should only be paid for from the occupational tax by irrigators. In order to raise money for a permanent lease or buy out of existing surface water irrigation rights, the NRD's will need to sell bonds. It is my understanding that initially they will have to be backed by property tax revenue. The occupational taxes on irrigated land need a year or two of history in order to be pledged for bonds. We are now at a point where in order to meet compliance of the compact; the irrigation districts need to be permanently leased. Even though the irrigation districts have lost almost all of their available surface water flow west of Cambridge by 2002 due to ground water pumping, what little water that runs into the lakes is appropriated to the various irrigation districts. Unless the irrigation districts relinquish that water, the way the system works, there will be very little available for Kansas. Even with all the irrigation districts water, in most years there isn't enough water to meet the requirements. That means there will need to be a reduction in ground water pumping. Wells in the quick response area can be shut down and supply this water quicker, but unless the upland wells are restricted enough to become sustainable, the lag effect compounds each year, requiring more shutdown of wells closer to the river.

LB 701 is the first time I have seen the state separate out an area of the state and then have three of the four NRD districts of the basin bear the burden of a required state agreement. Tri-Basin NRD, the fourth NRD did comply with what DNR requested. The way I understand it, DNR will determine yearly the amount of water that can be pumped in each NRD considering how much of it will be quick response or upland pumping. The legislature has left it up to local control (The NRD board) to decide how to address who gets that limited amount of water and how much. Statutes are called tools the NRD's can use. The NRD's have the option of giving an equal amount of the DNR allotment to each irrigated acre and wouldn't need to put on a tax to reduce ground water pumping. That is what the state will require if the NRD does not meet the compact requirements. That amount has not been officially announced. If it is low of a number, it could require shut off almost all of the irrigation in those districts. This would devastate the economy of the basin. A question is what is to low? Until an official DNR number is given, a final determination shouldn't be made. If the NRD buys out an irrigated acre, gives an additional amount to the remaining acres.

There are also tools in previous statutes that allow them to reduce allotments on wells or even shut off wells drilled after certain dates. Where your irrigated land is located in the district has a lot to do with what you want to happen in your area. The follow is what I feel how and why this happened.

Governor Nelson and Governor Johanns had a Republican River Advisory Commission, which was a sounding board for the settlement with Kansas, consisting of various people and NRD board members from each district in the basin. Each NRD manager attended the meeting, even if they were not on the board. There were also other board members on the Governor's Republican River task force from each district, consisting of business people, Recreational, farmers, ranchers, banker, etc. on the board. It was a good representation of basin's interest. We all heard the same things. Most of members on that board when presented with the facts realized the seriousness of over consumption of water in the basin and the ramifications of the compact lawsuit. When the settlement negotiations were being done in the last eight months, everyone involved had to sign a confidentiality agreement that made us personally liable if we disclosed any information. The judge for the case required this. I was one of those members. When the settlement was made almost every one agreed it was a far better agreement then what it could have been or what we would have probably received from the courts.

When those that took it serious went to their individual NRD board, the irrigators didn't like the message. They rebutted the messengers. Some got voted out, some quit, some dismissed from the job and others just ridiculed,

threatened or ignored. The farmers were expanding their irrigated acres after 1998. Senator Schrock made a bill that became statute 46-739 (c) "For a management area in a basin or part of a basin that is or was the subject of litigation over an interstate water compact or decree in which the State of Nebraska is a named defendant, the district may establish different provisions for restriction of water wells constructed after January 1, 2001, if such litigation was commenced before or on May 22, 2001". All wells drilled after January 1, 2001 could be shut down. It was the law and people knew the risk. Every irrigator that drilled a well after January 1, 2001 knew they could be restricted or shut down. The law was put in to discourage people from drilling wells, it is still the law and can still be used, but it will be unpopular to enforce.

By statute the director of the Department of Natural Resources, Roger Patterson could only recommend or request and not require the NRD's to do something. This is a quote from DNR's director Roger Patterson's letter to the NRD's dated April 9, 2003. "To begin with the certification of irrigated acres should be considered a priority. We suggest that you establish certified acres using land that was actually irrigated at least once between 1998 and 2002. No operator should be permitted to irrigate land that has not been irrigated at least once during the 1998 to 2002 timeframe unless special circumstance, such as enrollment in previously irrigated acres in a federal program that prohibited irrigation, such as CRP. Another exception may be the use of ground water to supplement lands under a surface water appropriation." In another letter there was also a requirement of five or ten percent reduction in pumping in water short years.

The NRD's allowed tens of thousands acres to be certified outside of these parameters and wouldn't reduce the allocation to what DNR requested. So many more acres were being watered that a much larger reductions in allotments was needed to be made to meet the compact. After Kansas sent Roger a letter on July 16, 2004, Roger Patterson gave in to the NRD's to get a joint management plan done.

It appears the State is now saying the NRD's had been given all the authority and guidance they needed in order not to become over developed.

The three NRD's chose to ignore the recommendation of the Director of the DNR, which most likely would have prevented this problem. Now the state is saying it's time those NRD's solve the overdevelopment within their district

that they caused or the state will set the allotments.

Now that the water bill LB 701 will pass there are several things the

citizens of the basin need to know.

The Upper Republican Natural Resource District and the Natural Recourses Commission had studies done in 1976 & 1978 that showed what was going to happen to surface water flow in the Republican Basin told who's water they were taking. It was an accurate study both for depletion and time line. It is not the drought causing the depletions, but the predicted drying up of the river and wells because of ground water depletions. It predicted the stream flow at Palisade in the year 2000 would be 10 percent of the 1975 flow. It missed it by one year. Enders is scheduled to go dry.

LB 375 passed in 1982 took away the protection of surface water from DWR buy giving the management of the ground water within a district to the NRD and allowed the NRD to determine the life of the aquifer subjected to correlative rights of other ground water users.

Senator Louden talked to a small group of us in the Rotunda after the bill was advanced Thursday and he asked if the NRD would regulate to make up the shortage. The feeling of our group was no or at least not very much. He said that was up to the people of the district now to decide if they want to regulate or buy out acres to become sustainable.

The following are other tools in the statutes that give the NRD authority what they can do in regulating ground water pumping.

The Legislation that now allows the NRD's to treat quick response wells different was originally LB 217 passed in 1978. The hearings show the original intent was to allow NRD's to treat the local areas that had become over developed because it was hydrological and geological suited for rrigating almost all of the land within the area. Over development of those areas were causing declines in the water table and stream flow depletion at that time. The intent was to allow the NRD to lower the allocation in the area of the district where the declines were occurring and allow a higher allocation in areas where there were no declines. The areas that now have a aquifer declines of 15 foot or more have justification to be retired just as much as the quick response. LB 375 was passed shortly after and LB 217 was never used as intended.

The Middle Republican NRD passed a management plan on July 1, 1998. Statute 46-739 (b) says the NRD district may treat wells drilled after that date

different then wells drilled before that date. The other NRD's have different dates. It was known then, that areas were being over developed and declines in the aquifer were occurring, and any wells drilled after that date was in jeopardy of being restricted or shut off. A lot of people didn't drill irrigation wells because of that statute. The problem is a lot of farmers and developers did. This statute can be enforced. We drilled one well knowing it could be shut off.

Depleting the aquifer has dried up several thousand acres of surface water and groundwater-irrigated acres in the Republican River basin in all the southern Counties of Nebraska. The dried up surface water allotments have been basically an undocumented transfer of appropriated surface water rights to ground water pumping in the Upper Republican NRD. NRD's didn't do anything to stop the taking of surface water. They didn't care that they were taking someone else's water. Now the NRD's need tax money to buy out surface water rights in order to keep pumping more then what is sustainable, every one in the 3 district are being required to pay for the undocumented

transfer.

Another undocumented transfer could happen that is very important to the southern counties of the NRD district. Red Willow County consists of 64.5% quick response acres, Hitchcock County has 62% quick response acres and the LRNRD probably has a higher percentage of quick response in their southern counties. Lincoln County is only 10% quick response and Hayes County is 23.6% quick response but they have the areas of the largest and greatest declines in the aquifer in the MRNRD. The URNRD has approximately 70,000 acres of quick response acre versus 378,000 acres of upland.

The NRD's have stated they only want to maintain Compact Compliance and settlement agreement. They do not want to go sustainable. The Statutes says correlative rights, which means everybody shares equal in times of shortage.

If the aquifer is allowed to continue to decline in the areas that feed the streams and river, the quick response areas will need to be shut down. At the March meeting of the MRNRD several of the board said they could not get by reducing more than two inches. I'm sure if 2 inches is all they reduce the allotments, the hydrology will allow the continuation of the drying up the streams and rivers and will require an expansion of the quick response later on. It has to be remembered the quick response was once alluvial, then expanded to quick response and can be expanded more. It is just so many miles from the river and where I live it ends almost three and a half miles from the river. It is also disconnected from the river so it is not hydrological or geologically connected. The quick response area is a minority area of the basin, but should have just as many rights. It is also the most productive and has the least production cost. Over the last few weeks I have had several irrigators call and tell me they would like to divide up what can be pumped after the compact requirements are met and share equally with all. It appears the NRD's want to use the taxing and bonding authority to buy out the quick response areas so the upland area can keep pumping. If the quick response is bought out without requiring the upland areas to be sustainable, it could over time take out 2/3 of the irrigation in the southern counties, which I feel will cause an economic loss in those southern counties far greater then making the upland go sustainable. This would be an undocumented transfer of ground water irrigation pumping from the southern counties to the upland areas in the western and northern counties of the basin. If the upland doesn't become sustainable, the lag effect will require a continuing buy out of acres close to the river, due to the lag effect. The NRD has the authority to sell bonds for up to 15 years. The life of each bond is not specified. The quick response taxpayers in quick response area could be paying for their elimination if it isn't sustainable. Requiring the buying out a proportional percentage of upland acres would be better if a buy out were used. I'm sure there are people all over the basin that will sell their rights, if the price is right.

For information only, in late fall of 1999 at the Middle Republican Natural Resources District Board meeting, I verbally made a formal request, during the open forum session before the 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. I was told that the problem was caused by another NRD and they couldn't do anything about that situation. The Middle Republican Natural Resources District did not cause the problem. I was also told that due to the Kansas, Nebraska and Colorado lawsuit there was nothing the NRD's could do, under state orders from the Attorney General. The Attorney General had put out an order that the NRD's could do nothing that would show a sign of weakness. There was nothing any individual could do to stop what was happening.

The fact is the NRD board had and now has more authority to make the decisions that affect every person and property owner in the basin with a simple majority vote of the board. When the NRD was setting allotment and making rules, irrigators packed the boardroom to get what they wanted.

Whenever a board member tried to do what should have been done, they got cut down and then voted out at the next election.

Even though you don't irrigate, if you live in one of these NRD districts, the decision of your NRD board will make a substantial impact on your taxes, the value of your property, and the quality of life, especially for the southern counties of southwest Nebraska. Only if you or your representative go to the meeting, finding out what is going on and voicing your opinion after you hear the information from the board, will make a difference.

Even though at times I don't agree with Steve Smith, the article listed below is very good at explaining more of what has and is going to happen.

How Nebraska Water Policy Decisions Are Made.

http://www.waterclaim.org/blog/ 04/20/07

My position is I want an equal share of the available allotment of water from DNR, no more or no less.

I do not want an involuntary buy out of quick response acres. I do not want the southern counties of the MRNRD devastated with a shutdown of irrigation so that others can continue to deplete the aquifer, which will dry up the streams, River, wells and lakes. I don't want to see the people of the basin obligated to repaying a bond and have Kansas sue.

Claude L Cappel

?McCook