Even in drought, Nebraska water flows downhill

Water and other stuff flows downhill in Nebraska, especially when the Legislature is in session. During the same week that the state Department of Natural Resources started releasing water from the Harlan County Reservoir to the Republican River in Kansas to avoid penalties, state lawmakers gave first-round approval to a measure that would compensate Nebraska farmers for the loss of water.

Most water laws impacting the states were drafted in the form of compacts in the 1940s. Nebraska has long struggled with Colorado and Wyoming over Platte River flows that were first set in the late 1940s and are now overseen by a special master. Kansas has long accused Nebraska of violating the 1943 compact by allowing farmers to divert more than their legal share for private use. Kansas has said Nebraska has allowed the use of thousands of wells hydraulically connected to the river and its tributaries, thus depleting the river's flow.

There have been two lawsuits involving Kansas and Nebraska, including one that is pending before the U.S. Supreme Court. Water lawsuits are complicated and lengthy. There is the matter of surface water (lakes and rivers and streams) and ground water (wells).

One of Nebraska's best (water) legal minds, the late Gov. Robert Crosby, once wheeled a stack of boxes of legal files on water cases into the Nebraska Supreme Court during oral arguments. The stack was taller than he was. That was several decades ago and dealt with Wyoming releasing enough water to keep Nebraska's Panhandle inland lakes (Big and Little Lake Alice, Minatare and Winter's Creek) at a certain water level.

That was also before Nebraska went through a drought cycle that would compare to recent years. Now, a state that has limited money available and projections of a lingering drought is planning to compensate farmers when the department limits or shuts off irrigation in the Republican River Basin. The bill (LB522) would direct $10 million to pay surface-water irrigators as much as $150 an acre per year for two years as compensation for the loss of water. Of that, $6.6 million would come from a fund the Legislature has been paying into since 2007 - the last time the state paid irrigators for water sent to Kansas. The other $3.4 million would be new spending from the general fund. If passed, the bill would also set policy so the $150-an-acre yearly payment could be increased to $300.

The Republican River, formed by the confluence of three smaller streams that originate in the high plains of northeast Colorado, flows generally eastward from Colorado into and along the southern border of Nebraska, into Kansas. There, the Republican River joins the Smoky Hill River to form the Kansas River. The 1943 compact says that Nebraska gets 49 percent of the water, Kansas 40 percent and Colorado 11 percent.

The state recently ordered the release of water from four Federal Bureau of Reclamation owned-and-operated reservoirs - Swanson, Enders, Hugh Butler and Harry Strunk. Critics say that the release of surface water is a quick fix that should have been addressed by better management of groundwater supplies.

A water lawsuit was filed in December by two groups of irrigators against the state of Nebraska and federal officials, challenging a plan to pump groundwater into the river to comply with the 1943 compact. It was filed in U.S. District Court by the Frenchman Cambridge Irrigation District, the Bostwick Irrigation District and three individual irrigators against Gov. Dave Heineman, the state Department of Natural Resources, the Upper Republican NRD and the U.S. Department of Interior, among others.

Natural Resources Committee Chairman Sen. Tom Carlson of Holdrege voted for the payment measure, but he said that might change during the next round of debate if the lawsuits filed by the people who are asking the Legislature to help them find a solution aren't dropped. Omaha Sen. Steve Lathrop said somebody needs to get a handle on the situation so the state doesn't have to keep throwing money at the problem. He noted that some of the surface water is actually going into the earth to recharge the wells of the groundwater users.

Then came the profundity. "This is everybody's water" and the Legislature can't continue to pay people for water that wasn't theirs in the first place, Lathrop said. True.

So, what's next? The air that we breathe?