Unmanaged water conflict could cost Nebraska millions

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By Michael Wunder, News Editor

The key issue facing Nebraska’s management of the Republican River resides within state boundaries, said Ann Bleed, former director of the Nebraska Department of Natural Resources.

Officials need to develop a plan for the allocation of water to counter the state’s overusage of the resource, which, in the past, has violated a compact between Nebraska, Kansas and Colorado.

The allocation needs to be done fairly and equitably, which will be difficult in a region where a lack of water means a lack of income, and the concept of fairness is highly contestable.

“It’s a very controversial issue.  There’s not enough water to go around,” Bleed said.  “Who’s going to get it?  What is fair?”

In 1998, Kansas sued both Nebraska and Colorado for violating the Republican River Compact.  The agreement, ratified in 1943, allows the three states a percentage of the water available in the Republican River.  Colorado received 11 percent, Nebraska received 49 percent and Kansas received 40 percent.  Until the recent high precipitation of 2008 and 2009, Nebraska and Colorado repeatedly used more water than their allocation, Bleed said.

Interstate lawsuits go straight to the Supreme Court, but the three states eventually settled out of court in 2002.  The case was supposed to make Nebraska take steps toward operating within its share of the water.

“We thought Nebraska was going to take the necessary actions,” said David Barfield, the Chief Engineer of the Division of Water Resources for the Kansas Department of Agriculture.  “But there were violations starting in 2005.”

In May of this year, Kansas took claims to the Supreme Court arguing Nebraska had once again been overusing water from the river.

“We’re going back to the U.S. Supreme Court to make Nebraska take the necessary actions,” Barfield said.

A lot of Kansans are upset with Nebraska, Barfield said.

“We stopped a lot of our development upstream in the 1980s.  Nebraska kept on drilling.  In our view, Nebraska overdeveloped its share, poking wells down as fast as they could,” Barfield said.  “Our [water] users were upset about all that.”

In both Kansas and Nebraska, the Department of Natural Resources oversees the usage of surface water, but groundwater usage in Nebraska is regulated by Natural Resource Districts.  The Republican River Compact only allocates surface water, which causes a problem, Barfield said.

Nebraska overuses ground water that feeds the Republican River; it lowers the amount of surface water available in the river.  For Kansas, this means a low amount of water available and a high number of shortages.

These shortages, according to Kansas, accumulated to $72 million in damages.  This assessment was deemed unsound by an independent arbiter from the Republican River Compact Administration.  The arbiter set the damages at a nominal value of $10,000.  The true number is likely between $800,000 and $1.2 million, Bleed said. 

No matter the amount of damages, it is unlikely Nebraska will be able to avoid a costly litigation process.

“We’ve already admitted that we violated the compact settlement,” Bleed said.  “Clearly there were damages.”

Unless Nebraska is able to operate within its share of the Compact, there will be continued litigation and expense, as well as increasing anger from the state’s southern neighbors, Bleed said.

In order to become compliant with the Compact, Nebraska has been working to draft a plan satisfactory to Kansans and Nebraskans alike, but stumbling frequently.

Within Nebraska, three natural resource districts oversee water usage along the Republican River:  The Upper Republican NRD located in Imperial, the Middle Republican NRD in Curtis and the Lower Republican NRD in Alma.  Each district must agree on a plan.

However, much like the compact’s divvying percentages among Nebraska, Kansas and Colorado, the three NRDs have their own allotments of water.  The Upper receives 44 percent of the river’s surface water, the Middle receives 30 percent and the Lower gets 26 percent. 

The Upper and Middle districts agreed on a strategy implementing the shutdown of irrigation wells when the Republican’s flows are low.  The Lower Republican NRD is unwilling to agree to the strategy.

“The problem we have with what the state proposes is equity,” said Mike Clements, General Manager for the Lower Republican Natural Resources District.

“The problem with the LRNRD, from day one, with the state’s plan, is, guess what? We have 47,000 acres in our district, the Middle has 38,000 and the Upper has 22,700.”

The LRNRD thinks since the district only receives 26 percent of the water in the river, the proposed plans should be more equitable.

“There’s a lot of controversy,” Clements said.  “I think there’s been a lot of pressure put on all the NRD’s to adopt the state’s plans.  It hasn’t helped us out a lot.”

The LRNRD is looking for a more sustainable approach.  An approach focused on change over time, and change that will last.

“Just shutting off wells doesn’t do anything to address declines [in the amount of water],” Clements said.  “We can’t accept any of the state’s options.”

Last year, the State of Nebraska gave three options to the three Republican NRDs.  The Upper and Middle districts chose option 3, which is the strategy of shutting down wells.  The other options weren’t desirable either.

“Option 1 is ridiculous,” Clements said.  “It would leave too much water on the table.  We don’t think any of the options do anything to really promote long-term sustainability.”

The LRNRD created its own plan and is anxious to sit down with the Department of Natural Resources and work through it.

“We think this is something that has a lot of merit,” Clement said.

Their plan would essentially call for an additional 20 percent reduction in water usage over the next nine years.  Usage would be required to decline 4 percent per year.

“If we can do that, then maybe we won’t have to shut the well off,” Clements said.

The LRNRD wants to be as equitable as possible with Kansas as well.

“Ideally we would like to give Kansas everything they’re entitled to,” Clements said.  “And not a drop more.”

Hopefully, Kansas will receive all the water they’re entitled to, or else the federal government may get involved, Bleed said.

A likely result of continual non-compliance with the compact would be the appointment of a Rivermaster, a representative of the federal government.

“They would tell us what we have to do with our water,” Bleed said.  “Needless to say, that would not be popular.”

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