DRAFT

INTEGRATED MANAGEMENT PLAN

Jointly Developed by the

DEPARTMENT OF NATURAL RESOURCES

and the

UPPER REPUBLICAN NATURAL RESOURCES DISTRICT

 

AUTHORITY

This Integrated Management Plan (IMP) was prepared by the Board of Directors of the Upper Republican Natural Resources District (URNRD) and the Nebraska Department of Natural Resources (NDNR) in accordance with the Nebraska Ground Water Management and Protection Act, Neb. Rev. Stat. §§ 46‑701 to 46-753 (Reissue 2004).

BACKGROUND

Commencing in 1978, URNRD has adopted and enforced rules and regulations for the purpose of managing the groundwater resources within URNRD.  On April 11, 2003, effective May 8, 2003, the URNRD, pursuant to applicable statutory rulemaking procedures and Neb. Rev. Stat. § 46-656.25 (Reissue 1998), adopted the State of Nebraska Upper Republican Natural Resources District Amendments to Rules and Regulations for Ground Water Control – Order No. 26 and the Upper Republican Natural Resources District Technical Manual of Policies and Procedures TM-26 (the “URNRD Rules” or “the Rules”).  In the regular meeting, on July 6, 2004, the URNRD voted to extend Order No. 26 until September 1, 2005.  Rule 9A of the Rules provides for a basic allocation of ground water to certified irrigated acres within the URNRD of 72.5 acre-inches for the five (5) year period between January 1, 2003 and December 31, 2007, an annualized allocation of 14.5 acre-inches.  Since their adoption, the Rules have prohibited additional allocations for ground water use and additional well permits, except under limited circumstances.  In addition, among other things, the Rules continued and recodified the URNRD’s practice of allowing ground water users to carry forward the unused portion of their allocation, together with any remaining unused portions of allocations from previous years, into succeeding allocation periods and permitted the URNRD to approve pooling contracts, both in accordance with the URNRD Rules.

In 1943 the States of Colorado, Kansas and Nebraska entered into the Republican River Compact (the “Compact”) with the approval of the United States Congress.  The Compact provides for the equitable apportionment of the “virgin water supply” of the Republican River Basin (the “Basin”).  Following several years of dispute about Nebraska ’s consumptive use of water within the Basin, Kansas filed an original action in the United States Supreme Court against the States of Nebraska and Colorado in 1998, seeking, among other things, to include hydrologically connected groundwater in the calculation of Nebraska ’s entitlement to the virgin water supply.  After several rulings by the United States Supreme Court and its Special Master and several months of negotiation, the three states entered into a Settlement Agreement, which required the inclusion of hydrologically connected groundwater in the calculation of the States’ water entitlements.  That Agreement was approved by the United States Supreme Court on May 19, 2003

Both prior and subsequent to the approval of the Settlement Agreement, NDNR conducted and participated in several meetings with URNRD, including several public meetings.  During the course of those meetings NDNR explained, in order for the State of Nebraska to achieve and maintain compliance with the terms of the Settlement Agreement, it would be necessary to (1) continue the moratorium on new surface water appropriations and new ground water wells, (2) reduce all ground water pumpage by five (5) percent from historic levels across the entire Basin and (3) further reduce all ground water pumping needed to comply with the Compact in water short years, to be accomplished to the extent possible through the use of incentive programs to reduce consumptive use of water.  immediately curtail any expansion of surface waters and to reduce all groundwater pumpage by five percent (5%) from historic levels across the entire Republican River basin .  Groundwater within the Republican River basin is regulated by four Natural Resource Districts: URNRD, the Middle Republican Natural Resources District (the “Middle”), the Lower Republican Natural Resources District (the “Lower”) and the Tri-Basin Natural Resources District (“Tri-Basin”) (collectively hereinafter the “Districts”).  Similar discussions were held between NDNR and each of the Districts regarding the need (1) to accurately measure actual groundwater and surface water usage throughout the basin and within each District, (2) for Tri-Basin to maintain, at sufficient levels to offset depletions to the Republican River caused by ground water pumping within Tri-Basin, the Compact credit that Nebraska receives because of discharges from the “ground water mound” to the surface water supplies in the Basin; and, 3) for each of the Districts other than Tri-Basin to reduce its ground water pumping by 5%, based upon their 1998-2002 baseline pumping figures, as defined below.

The “Final” IMP addresses to two ways of measuring water.  Later in this document, it will be seen that instead of choosing one method or the other on which to base decisions, it chose both methods.  That should make it fun for a judge to decide what they meant.

There are two ways of measuring water.  Actual gallons pumped from the ground and computer simulated numbers. The real pumping numbers have little relationship to the simulated numbers.  Where the well is located has a huge affect on simulated numbers.  Reducing real pumping will not result in a equal reduction in the simulated numbers.  The DNR is responsible for reducing the simulated water numbers.  The request for a reduction in real water pumping does not produce the results the DNR needs to achieve.

The agreement with Kansas calls for reduction in ground water usage to the extent the groundwater affects the stream flow.   Computer models have been created to estimate the effect each well has on the stream.  These estimates are unavailable to the public or the NRD.  The numbers are held by the DNR, and it refuses to release the data.  Nor has the URNRD has not requested the data.   However, there is another source for the numbers.  The COHYST model, which estimates the ground water effect on the stream flow, overlaps much of the Republican Basin .  Where the overlap exists, we can access the numbers. 

Water pumped from the ground will have a limited effect on the stream.  The closer to the stream, the more impact an aquifer well will have.  A well more than 5 miles from the stream will have almost no effect on the stream.  A well within 1 mile of the stream may cause an 80% depletion, over 40 years, effect on the stream.  That means that 80% of the total pumping volume that occurred over the 40 years would have been in the stream, if it had not been diverted by the irrigation well.  Twenty percent (20%) of the total pumping would still be in the ground and would not have leaked into the stream after 40 years. 

So when the DNR asks the NRD to reduce pumping by 5%, it is asking the NRDs to do something that will have little benefit to the Settlement agreement with Kansas .  Reducing water usage from wells that are several miles from the stream will have no benefit to the Settlement agreement.  It will help slow aquifer depletion; but, for much of the Basin aquifer depletion, it is not an issue. 

A reduction of 5% on every well within a couple miles of the stream will cause the stream flow to increase by about 3,000 acre feet.  However, to accomplish this, the DNR is asking the URNRD to make a reduction in water usage of about 25,000 acre feet to accomplish a 3,000 acre feet benefit to the stream. 

Once again, the reduction in allocation on a well more than 5 miles from the stream does not help Nebraska comply with the Settlement agreement.  Wells more than 2.5 miles from the stream have limited effect on the stream.  Over 90% of all stream flow depletion is caused by wells within 2.5 miles from the stream.

Since 1978, with adoption of its Order #1, URNRD has required the metering, data collection and reporting of groundwater use, resulting in actual pumpage and use data, and has imposed allocations and regulation on groundwater users within the URNRD, while the wells in the Middle and Lower were neither reported nor regulated during the same period.  In order to estimate pumping in the Middle and Lower, other methods based on hours of operation using electrical power information and individual pumping rates were used.  The NDNR determined concluded the following pumping volumes for the period 1998-2002: 531,763 acre-feet for the URNRD, 309,479 acre-feet for the Middle and 242,289 acre-feet for the Lower.  These pumping volumes are used throughout this IMP and are referenced as the “1998-2002 baseline pumping figures.”  NDNR, through the use of the Republican River Compact Administration Ground Water Model, has also determined each District’s depletions to stream flow for the period 1998-2002 (“1998-2002 baseline depletion figures”): ______ for the URNRD, _______ for the Middle and ______ for the Lower.  Those depletion numbers have resulted in the following depletion proportions: 44% for the URNRD, 30% for the Middle and 26% for the Lower.  These depletion proportions are used throughout this IMP and are referenced as the “1998-2002 baseline depletion proportions.”

The fact that the amounts the URNRD is agreeing to are left blank means the URNRD and the DNR are presenting an incomplete document to the public.  The law requires the proposed rules be made available to the public at or prior to the first publication of the notice of a public hearing.  The blank lines means the document presented is incomplete and, hence, the notification period is being violated.  As the numbers that will go into the blank lines are some of the most significant in the document, this is a violation of the Administrative Rules Act and should result in a delay of the public hearing until the numbers are filled in and proper notice is given.

Also, if you are the judge and have to decide which number the URNRD has agreed to reduce from, how would you rule?  The way this is written, the URNRD is agreeing to reduce by both 49% and 44% or, as seen later, whatever else the DNR indicates is necessary in a water short year.

The LRNRD board disputes these volumes and has indicated they may challenge the numbers in court.  They believe they can prove the volume estimates are low by about 20%.  The MRNRD ignores the volume issue.  The MRNRD does not address the volume they use in their IMP (which the State has accepted). 

The URNRD wants to cause the Lower and the Middle to reduce usage to the listed volumes prior to the Upper being forced to make any additional reductions.  A question you need to answer is, “Does an agreement between the DNR and the URNRD protect the URNRD from other agreements the DNR has made with the other Districts when the volume numbers are not in the other Districts’ IMPs?”

URNRD and NDNR wish to adopt and implement an IMP for the regulation of water resources within the District as required by the laws of the State of Nebraska .  NDNR has required that the IMP for the District include a five (5) percent reduction in the URNRD’s ground water usage. from the current 14.5 acre inch allocation described above to a 13.5 acre inch allocation.  Based upon its calculations, NDNR believes that a reduction from an annual allocation of 14.5 acre-inches to 13.5 acre-inches will has represented such a reduction will likely achieve the estimated 5% reduction in URNRD’s groundwater usage.  URNRD desires to assist Nebraska in meeting its obligations under the Settlement Agreement by adopting revised rules to implement NDNR’s suggested reductions (“URNRD Revised Rules”), so long as each of the Districts are treated equivalently and the use of water  by reductions actually achieved by each District is within the allocations distributed to each District based on its proportional share of the 1998-2002 depletion figures. are proportional to the 1998-2002 baseline pumping figures.

The DNR does not have the authority to require a reduction from 14.5 to 13.5.  It may request, cajole, threaten, and use other negotiation tactics, but it cannot legally require it.  See our articles “Nothing Required” and “Nothing Required Again.”  However, no NRD board member agrees.  Each believes the DNR has the ability to require the change.  Our question is, “If the DNR has the ability to require certain elements, then what authority does the NRD have?” 

A copy of the current draft of the URNRD Revised Rules, to be considered for adoption concurrently with this IMP by URNRD, is attached and its provisions incorporated in this IMP.

GOALS AND OBJECTIVES

Pursuant to Neb. Rev. Stat. § 46‑715 (Reissue 2004), the goals and objectives of this IMP must have as a purpose “sustaining a balance between water uses and water supplies so that the economic viability, social and environmental health, safety, and welfare of the river basin … can be achieved and maintained for both the near term and the long term.”  The following goals and objectives are adopted by the URNRD and the NDNR to achieve that purpose:

Goals:

1.      To assist the State of Nebraska, in cooperation with the other Districts, in achieving and maintaining compliance with the Compact as adopted in 1943 and as implemented in accordance with the Settlement Agreement approved by the United States Supreme Court on May 19, 2003;

2.      To ensure that ground water and surface water users within the URNRD assume their share, but only their share of the responsibility to assist Nebraska in achieving and maintaining compliance with the Compact.  and

3.      To provide that the URNRD’s share of that responsibility be distributed within the URNRD in an equitable manner and to minimize, to the extent possible, adverse economic, social and environmental consequences.

Equitable is not defined in this document.  Does “equitable” mean that the responsibility will be shared by all acres equally, by the share of depletion caused by the well, based on the need, or by some other definition?

4.      To consult with irrigation districts, reclamation districts, municipalities, public power companies and districts, water users and other stakeholders during the preparation and development of the IMP to the extent practical.

The new document completely removes any reference to the goal of including the stakeholders as is required by law.  It is likely that this reference was removed because it became obvious that the law was ignored.

Not all stakeholders that have asked to participate in the IMP have been allowed to be involved.  For example, the Nebraska Game and Parks asked to be involved in the IMP.  The request was ignored.  The law requires that the municipalities and irrigation districts be involved in a formal way in the development of the IMP.  To our knowledge, this has not happened.  The majority of the URNRD Board claim that they have not been involved in the development of the IMP.  Only the negotiating committee and the manager have been involved in the process.  Kuenning, Ambrosek, Frasier, Gengenbach, Bernhardt, and Strand have publicly stated they have not been involved in the process.  This document was created by Pelster, Terryberry, Owens, Large, and Martin with little consultation with the other board members.

Objectives:

1.      With limited exceptions, prevent the initiation of new or expanded uses of water that increase Nebraska’s computed beneficial consumptive use of water within the URNRD, as required for compact compliance;

How will this affect pooling?  It does not appear that a restriction will be in place that will limit the ability of a farmer to increase pumping from a well close to the stream due to his ability to adjust his pool location.  This would increase the consumptive use of the district.  Nor is there any reward for moving usage away from wells close to the stream.

2.      Ensure administration of surface water appropriations in the Basin is in accordance with the Compact and in full compliance with Nebraska law.

3.      Reduce existing ground water pumping within the URNRD by five (5) percent from the 1998-2002 baseline pumping figures and from the 1998-2002 baseline depletion figures of use that was established by utilizing 1998 to 2002 ground water pumping estimates and the associated streamflow depletions as computed through use of the RRCA Ground Water Model.

The new language states two objectives.  One is to reduce pumping by 5% and the other is to reduce depletions by 5%.  According to this document the URNRD share of pumping is 49% of the total and the depletion share is 44%.  There is no supporting evidence that the depletion share is 44%.  Our research puts the URNRD share of the depletion at about 28%, not 44% or 49% or the ____% that the NDNR will fill at some future date.

A 5% reduction in consumptive use as computed by the RRCA Model can be accomplished without any reduction in allocation by most wells.  A reduction in wells more than 2.5 miles from the stream has no benefit, according to the Model.

4.      After taking into account any reduction in beneficial consumptive use achieved through basin-wide incentive programs, make such additional reductions in ground water use in water short years as are necessary to achieve a reduction in beneficial consumptive use in the URNRD in an amount proportionate to the total reduction in consumptive use required by the Settlement Agreement in Nebraska above Guide Rock in such years;

How this is accomplished is a key part of this document.  This document does not accomplish this objective.

5.      Cause the reductions in water use required for compact compliance to be achieved through a combination of regulatory and incentive programs designed to reduce beneficial consumptive use, relying on incentive programs available to as many of the URNRD water users as possible; and

By expanding the incentive programs to as many people as possible, it makes the incentive money less useful.  If the money is concentrated in the areas of greatest cause, the money will be more efficiently used.  It appears that this objective reflects a desire to create a retirement program for those who want out of farming, even if it does not benefit the stream flow.

6.      For the URNRD and the NDNR to investigate and explore methods to manage the impact of vegetative growth on streamflow.

URNRD is on record as supporting CREP and EQUIP; however, the CREP program will cause the most economic damage to the region of all of the suggested programs according to the economic report done by Ray Supalla.

There is no mention in the IMP of importing water into the Basin.   Importing water is the least expensive way of meeting the Settlement requirements.  Even though the URNRD has passed a resolution supporting the concept, it is not integrated into the objectives.  The Groundwater Management Act also requires the NRD to explore the import of water and maintain this information on file.  This has not been done.

 

MAP - see map 1.

The area subject to this IMP is the geographic area within the boundaries of the URNRD. 

The Model is capable of showing the depletion caused by each cell and, hence, each well.  The map should include any well that causes a depletion greater than x % within x years.  The current Quick Response map is arbitrary and does not reflect actual geology.  Thus, some people are seeing the land included that should not be and some are not included that should be.

GROUND WATER REGULATION

The authority for the ground water component of this IMP is Neb. Rev. Stat. §§ 46‑715 and 46‑739 (Reissue 2004).  This “Ground Water Regulation” section includes the URNRD’s rules and regulations, as agreed upon by the NDNR, and additional agreements between URNRD and the NDNR regarding Republican River Settlement implementation.  The ground water controls to be adopted and implemented by the URNRD are those found in the URNRD Revised Rules.  URNRD will adopt and NDNR will approve the ground water control measures contained in the URNRD Revised Rules on the basis of the following understandings and agreement between URNRD and NDNR:

This new language indicates there are additional agreements between the URNRND and the NDNR other than this document and the existing rules and regulations.  What agreements exist that have not been made public or presented at any URNRD board meeting?

1.  URNRD reductions.

A.  Reduction in baseline pumping - The reductions provided in the URNRD Revised Rules for ground water pumping from the current annualized 14.5 acre-inches to 13.5 acre-inches are based upon the NDNR’s calculation that such reductions are expected to provide an overall five (5) percent reduction in average annual ground water pumping and resulting associated stream flow depletions in the URNRD from the 1998-2002 baseline pumping and deletion figures.  The NDNR has made similar calculations to predict that the IMPs adopted by the other Districts and the NDNR will also achieve a five (5) percent reduction in average annual ground water pumping within each of those Districts.

The DNR has not provided nor has the URNRD requested the details of these calculations, so there is no ability for the URNRD to verify the numbers are reasonable and error free.

B.  Water short year pumping reductions - In addition to the five (5) percent reduction in overall baseline pumping, the URNRD will adopt rules and regulations to permit it to further reduce pumping in water short years when necessary to meet its proportionate share of Nebraska ’s water short year compliance under the Compact.  To the extent possible, basin-wide incentive programs will be used to reduce consumptive use in water short years.  In the event that such incentive programs are not adequate, each District shall be responsible for reducing its depletions above Guide Rock to its share of Nebraska ’s allowable depletion in proportion to the 1998-2002 baseline pumping figures and to the 1998-2002 baseline depletion figures above Guide Rock: _____ for the URNRD, _______ for the Middle and _______ for the Lower. Nebraska ’s remaining obligation to meet Compact compliance will be distributed to each of the Districts in proportion to the 1998-2002 baseline pumping figures.

This new language is a major new concession by the URNRD.  The URNRD is agreeing to remove the water usages below Guide Rock from the usage charged against the LRNRD. This will increase the percentage the URNRD agrees to be responsible for in water short years to an unspecified amount.  We estimate this will put the URNRD share at over 50%. 

This clause commits the URNRD to making a proportional reduction even for other Districts’ over usage.  There is no other paragraph or clause in these rules that modifies or limits this commitment.  For example, if one of the other Districts over uses 10,000 AF, then the URNRD is committing to reducing usage in this District by our share of the total.  If that share is 43% (this share is undefined), then the URNRD is agreeing to reduce usage by 4,300 AF for another District’s over usage. 

The other District IMPs do not include a volume allowance.  The current draft of the LRNRD does not agree to make any reduction beyond their 13 inch allocation on old wells and 11 inches on new wells.

This document does not define the URNRD proportionate share.  This percentage can vary significantly depending on whose numbers are being used.  The users of water in the Basin are:

·        URNRD

·        MRNRD

·        LRNRD

·        Tri Basin

·        Surface users

This document defines the volume allowed to the three Republican NRDs, but does not address Tri Basin usage or surface water usage.  According to the DNR, surface water usage varies from a high of 110,000 AF to a low of 50,000 AF.  The DNR projects all future surface water uses to be no more than 54,000 AF. 

The DNR makes no commitment in this document to reduce surface water usage.  It appears that all reductions are being made by ground water users.  True, most surface water users do not have access to water in the drought; however, when it rains again, all reductions still appear to be the responsibility of the ground water users only.

The DNR commitment on how it will regulate surface water uses is shown at the end of the URNRD rules (pages 29 through the end).  The commitment by the DNR is very vague with few specifics.  This agreement appears to one sided.  The URNRD makes detailed commitments while the DNR makes nebulous commitments.

The volume of water used and allowed by each group of Basin water users is in dispute.  There is nothing in this document that protects this NRD from adjustments to the volumes allowed to the other groups.  Those adjustments are likely.

Hence, this document commits the URNRD to an agreement based on an unknown and unstable set of numbers.

2.  If it is determined by URNRD and the NDNR, after consultation with the URNRD, that all of the Districts are in compliance with their IMPs, that each of the IMPs is adequate to achieve that District’s proportionate share of the reductions required by the NDNR, but that Nebraska is nonetheless out of compliance with the Compact, any additional required reductions will be established in proportion to each District’s 1998-2002 baseline pumping figures  and 1998-2002 baseline depletion proportions for both the five-year running average and for water short year compliance.  Each District shall be responsible for reducing its depletions to the share of Nebraska ’s allowable depletion in those proportions.

Once again the URNRD is agreeing to reduce usage by both 49% and 44% or the unspecified share in a water short year.

The URNRD also cedes its ability to share in the determination process on compliance with IMPs by each District.  Instead the URNRD simply consults with the NDNR while the NDNR makes the final determination with or without the URNRD agreement.

There are other options available besides reducing pumping that are economically less expensive.  This paragraph does not permit the use of those other options.

3.  The URNRD and the NDNR recognize that the required reductions in water consumption could be accomplished by means other than those adopted in this IMP.  The IMP and associated Rules may need to be amended in the future to implement any such revisions. 

This paragraph does allow for other compliance methods to be considered; however it requires a change in the rules and a public hearing to use those methods.  Since some of those are known now, why not include them?

4.  At various times in the future, additional information may become available to the URNRD and the NDNR.  As a result of this information, it may be determined that either less or more than the five (5) percent reduction in ground water pumping in combination with additional water short year reductions is required for Nebraska to meet its obligations under the Compact.  In the event it is determined that a greater than five (5) percent reduction is necessary to achieve Nebraska’s compliance, or that a lesser reduction is needed to meet URNRD’s proportionate share of Nebraska’s obligation, the NDNR and the URNRD will amend the IMP and its Rules accordingly.

There is evidence now that a lesser real water reduction will accomplish the 5% Modeled water reduction requested.  Because that evidence exists now and is being ignored, this promise is of questionable value. 

5.  Accounting of credits for retired acres – Any water savings generated through conservation programs, including acreage retirement or other conservation incentive programs undertaken through programs available throughout the Republican River Basin with the use of funds distributed by the State of Nebraska will be accounted as credits to the entire Republican River basin and not to any District, regardless of the situs of the acreage included in the program or of the location of the effect of such water savings on the river system.  Any water savings resulting from any such basin-wide programs shall not be considered in the calculation of any District’s 5% reduction from the 1998-2002 baseline pumping figures.  However, should any District establish and implement its own such conservation program, available only for acreage within such District, the accounting of credit for the resulting water savings shall be given exclusively to that District.

While the intent here is good, the paragraph wording says something different than what was likely intended.  If water is imported into the Basin, thus reducing the need for water allocation reductions, then this paragraph seems to commit that the District must still make the 5% reduction even though it is not necessary?

6.   The URNRD and the NDNR will make all documents, reports, records, computer runs or other calculations or material necessary to determine compliance with the Compact available to each other, regardless of whether such documents are available under the Nebraska Public Records Act or otherwise, unless such materials are rendered confidential by Nebraska Statutes or Court Rulings.  Specifically, and without limitation, the URNRD agrees to continue to meter, record and provide to the NDNR its ground water usage records; the NDNR agrees to provide to the URNRD all reports and records of the other Districts necessary to determine their compliance with reductions in accordance with the formula described above, as well as all documentation and reports utilized by the NDNR to determine the Basin’s virgin water supplies and Nebraska’s compliance with the Compact.

The DNR and URNRD agree to share information.  However, before agreeing to this document, it would be nice if the DNR provided all of the information listed here.  Depletion by cell is held by the DNR and is not available.  Detailed Lag Effect numbers are not available now; they should be. 

7.      To accomplish this goal, neither the URNRD nor the NDNR will require the IMP to be amended for the purpose of changing the responsibility of water users within the URNRD based on the failure of the other Districts to adopt, implement or enforce IMPs adequate to meet their proportionate share of the responsibility to achieve and maintain Nebraska’s compliance with the Compact;

Because the proportionate share is not defined nor are the other water user groups party to this document, this paragraph does not provide the protection that its advocates claim.

Corrected and confused at the same time.

 

 

STATE OF NEBRASKA

UPPER REPUBLICAN NATURAL RESOURCES DISTRICT

AMENDMENTS TO RULES AND REGULATIONS

GROUNDWATER CONTROL -ORDER NO. 28

Pursuant to the Nebraska Ground Water Management and Protection Act, Order No.28, and Technical Manual TM 28 adopted ____________, are amended as follows:

Rule 1. DEFINITIONS

All words, terms, and phrases used herein shall be given their common, every day meaning and usage.  In addition:

1.01          Allocated Acres shall mean the specific number of acres that have been Certified by the Board as eligible to be granted an allocation of groundwater.

1.02          Allocation shall mean the amount of groundwater granted by the Board to a groundwater user, pursuant to these rules and regulations.

1.03          Annualized Allocation shall mean the amount of water allocated on an annual basis, calculated as the Base Allocation divided by the number of years in the allocation period.

1.04          Base Allocation shall mean the total amount of water allocated for an allocation period.

1.05          Best Management Practices shall mean schedules of activities, maintenance, procedures, and other management practices utilized to prevent or reduce present and future contamination of ground water which may include irrigation scheduling, proper timing of fertilizer and pesticide application and other fertilizer and pesticide management programs.

1.06          Board of Directors or Board shall mean the elected Board of Directors of the Upper Republican Natural Resources District.

1.07          Certified Irrigated Acre shall mean any acre of ground upon which groundwater is being applied for irrigation purposes, regardless of the source of the groundwater, that is properly equipped to apply groundwater for irrigation purposes, and that has an allocation and was certified as such by the Board on or before the 31^st day of March, 1997. (Also see Irrigated Acre)

1.08          Certified Irrigated Tract shall mean an irrigated tract, not exceeding 640 contiguous acres, consisting of Certified Irrigated Acres.  (Also see Irrigated Tract)

1.09          Certified Laboratory shall mean any laboratory within or outside the State of Nebraska certified and approved by the Nebraska Department of Environmental Quality.

1.10          Chemical shall mean any fertilizer, fungicide, herbicide, or pesticide mixed with the water supply.

1.11          Chemigation shall mean any process whereby chemicals are applied to land or crops in or with water through an onfarm irrigation distribution system.

1.12          Contamination or Contamination of Groundwater shall mean nitrates or other material that enter the ground water due to action of any person and cause degradation of the quality of ground water sufficient to make such ground water unsuitable for present or reasonably foreseeable beneficial uses.

1.13          District shall mean the Upper Republican Natural Resources District, which encompasses Chase, Dundy, and Perkins Counties , in the State of Nebraska .

1.14          Fertilizer shall mean any formulation or product used as a plant nutrient, which is distributed on lands in the District, and/or intended to promote plant growth, and contains one or more plant nutrients recognized by the Association of American Plant Food Control Officials in its official publications.

1.15          Floating Township shall mean a set of 36 sections lying in a contiguous block, such that the area is six sections east to west and six sections north to south, designated by the section that forms the Northwest corner of the Floating Township .

1.16          Flowmeter shall mean a measuring device of the type and design which shall meet the standards and specifications for installation, operation, and maintenance as established by the District.  Every flowmeter shall be a mechanical or sensor device which measures and totalizes the amount of groundwater withdrawn.

1.17          Groundwater Irrigation Runoff shall mean groundwater used for irrigation purposes which escapes from land owned, leased, or otherwise under the control of a groundwater user. Groundwater that becomes commingled with surface water runoff shall be treated as irrigation runoff; except that groundwater irrigation runoff, whether commingled with surface water or not, which reaches a stream becomes surface water and is not subject to these rules and regulations.

1.18          Groundwater Quality Controls shall mean the rules and regulations which may be proposed or adopted for ground water quality and based on the three (3) phase program defined above.

1.19          Groundwater User shall mean any person that utilizes groundwater for domestic, livestock, agricultural, or industrial purposes.

1.20          Improper Groundwater Irrigation Runoff shall mean the occurrence of groundwater irrigation runoff which causes or contributes to the: accumulation of water upon or beneath the surface of the lands of any person to their detriment, damage, or inconvenience; deterioration of water quality by depositing sediment and/or associated chemicals in surface water within the Management Area; and/or flow of groundwater to waste. Improper groundwater irrigation runoff is subject to the General Enforcement Provisions of Order No.28 and TM-28.

1.21          Installer shall mean the company or groundwater user that installs meters on the groundwater user's irrigation equipment.

1.22          Irrigated Acre shall mean any acre with a demonstrated or proven history of having been or currently being irrigated on or before the 8^th day of May, 2003.

1.23          Irrigated Tract shall mean an irrigated tract consisting of Irrigated Acres, as defined in 1.11.

1.24          Management Area shall mean all of Perkins, Chase and Dundy Counties .

1.25          Manufacturer shall mean the company that produces meters for the supplier or dealer.

1.26          Meter shall mean a mechanical or sensor device that measures and totalizes the amount of water flowing from a well.

1.27          Offset shall mean any deduction from an allocation.

1.28          Owner shall mean any Person that has an ownership interest in a tract.

1.29          Permit shall mean a permit, granted by the Board, with conditions specified by the Board, for construction of a new well or a replacement well pursuant to these rules and regulations.  All new and replacement wells, except Domestic and Range Livestock, shall require a permit after September 1, 2002 prior to construction of the well.

1.30          Person shall mean a natural person, a partnership, a limited liability company, an association, a corporation, a municipality, an agency or political subdivision of the State or of the United States . The male pronoun shall include the female.

1.31          Phase I shall mean all areas within the District in which levels of nitrate nitrogen contamination, or any contaminant harmful to health or the environment is 0% to 40% of, the allowable level as determined by the Nebraska Department of Environmental Quality. On the effective date of this Order the entire territory of the Upper Republican Natural Resources District is Phase I.

1.32          Phase II shall mean all areas within the District boundaries so designated by the Board in which levels of nitrate nitrogen contamination, or any contaminant harmful to health or the environment, are over 40%, but less than 60%, of the allowable level as determined by the Nebraska Department of Environmental Quality. Phase II areas shall be designated only after dissemination to the public the boundaries of such proposed areas and the rules and regulations pertaining thereto and the conduct of one or more public information meetings followed by a public hearing after which the Board may designate Phase II areas of not less than 6 square miles with rules and regulations pertaining to ground water quality in such areas.

1.33          Phase III shall mean all areas within the District boundaries so designated by the Board in which levels of nitrate nitrogen contamination, or any contaminant harmful to health or the environment are 60%, or over, of the allowable level as determined by the Nebraska Department of Environmental Quality. Phase III areas shall be designated only after dissemination to the public of the boundaries of such proposed areas and the rules and regulations pertaining thereto and the conduct of one or more       public information meetings followed by a public hearing after which the Board may designate Phase III areas of not less than 6 square miles with rules and regulations pertaining to ground water quality in such areas.

1.34          Pipe shall mean any material capable of transporting water.

1.35          Point Source shall mean any discernible, confined and discreet conveyance, including, but not limited to, any pipe, channel, tunnel, conduit, well, discrete fissure, container, rolling stock, vessel, other floating craft, or other conveyance, over which the Department of Environmental Quality has regulatory authority and from which a substance which can cause or contribute to contamination of ground water is being or may be discharged.

1.36          Pooling shall mean any contract approved by the Board in which groundwater allocations are combined.

1.37          Rotation shall mean a recurring series of use and non-use of an irrigation well on an hourly, daily, weekly, monthly, or yearly basis.

1.38          State shall refer to the State of Nebraska .

1.39          Subirrigation or Subirrigated Land shall mean the natural occurrence of a ground water table within the root zone of agricultural vegetation, not exceeding ten feet below the surface of the ground.

1.40          Supplier or Dealer shall mean the company that sells or provides meters to installer,       groundwater user, or District.

1.41          Technical Manual shall mean a publication of the District that contains technical, administrative, procedural, regulatory and other materials, the contents of which are incorporated into these rules by reference herein. The Technical Manual is available to the public.

1.42          Transfer shall mean any arrangement approved by the Board in which the point of withdrawal, the point of use, or the type of use of an allocation is altered.

1.43          Violation shall mean the disregard or noncompliance with any cease and desist order issued by the District pursuant to the Groundwater Management and Protection Act or any orders, controls, rules, or regulations adopted by the District. Any person who commits a Violation shall be subject to the enforcement provisions and sanctions as provided by law and controls, rules, and regulations enacted by the District, including, but not limited to the reduction of any allocation granted or irrigated acres certified by the District, in whole or in part, after notice and hearing.

1.44          Water Short Year shall mean a year, as defined by the Republican River Compact Settlement Agreement, in which the projected or actual irrigation supply is less than 119,000 acre feet of storage available for use in Harlan County Lake .

1.45          Well shall mean any water well as defined in Nebraska statutes, Sections 46-601.01, 46-635.01, 46-1204.01, 46-1204.02, and 46-1212, R.R.S. For the purposes of these rules and regulations, wells are further defined and classified as follows:

1.45.01               Domestic Wells are wells used by a person or by a family unit or household for normal household uses and for the irrigation of lands not exceeding two acres in area for the growing of gardens, orchards, and lawns. Such wells are exempt from application of these rules.

1.45.02               Range Livestock Wells are wells, which are used for the watering of range livestock, and other uses of water directly related to the operation of a pasture or range. Such wells are exempt from application of these rules except for Rule 1-U-8.

1.45.03               Irrigation Wells are active wells that are fully equipped, and used for the pumping of groundwater to irrigated acres for the production of crops. Such wells must have a permit, Certified Acres, and an allocation; and be used in conjunction with a flowmeter located in the District.

1.45.04               Commercial Livestock Wells are wells which are used for the watering of livestock and other uses directly related to the operation of a feedlot or other confined livestock operation or dairy. Such wells must have a District permit and water allocation; and be used in conjunction with a flowmeter located in the District.

1.45.05               Back-up Wells are wells designed for confined livestock and dairy operations and which operate only in emergencies when the main well fails.  Back-up wells shall not be operated simultaneously with the commercial livestock wells, which they back up.  Such wells must have a permit and any water pumped from such shall be accounted against the allocation for the well it backs up.  Such well must be used in conjunction with a flowmeter located in the District.

1.45.06               Industrial Wells are wells used in manufacturing and commerce operations, and/or watering and maintenance of golf courses. Such wells must have a permit and an allocation; and be used in conjunction with a flowmeter located in the District.

1.45.07               Municipal Wells are wells owned and used by municipalities for public water supply. Such wells must have a permit and an allocation; and be used in conjunction with a flowmeter located in the District.

1.45.08               Commingled Wells are water wells that are commingled, combined, clustered, or joined with any other water well or wells or other water source, other than a water source used to water range livestock, after August 31, 1998.  Such wells shall be considered one water well and the combined capacity shall be used as the rated capacity.  Such wells must, prior to operation, have a permit and an allocation, and be used in conjunction with a flowmeter located in the District.

1.45.09               Supplemental Well is any well, the water from which is commingled with the water from any other well for irrigation purposes.

1.45.10               Replacement Well shall mean a well as defined by Section 46-602(2), R.R.S

1.45.11               Abandoned Well shall mean a well as defined by Section 46-1204.01, R.R.S.

1.45.12               Inactive Status Well shall mean a well as defined by Section 46-1207.02, R.R.S. The owner of any permitted well must notify the District when an active well is placed in inactive status.

1.45.13               Monitoring Well shall mean a well as defined by 178 NAC 12 at 002, Nebraska Department of Health and Human Services.

1.45.14               Observation Well shall mean a well as defined by 178 NAC 12 at 002, Nebraska Department of Health and Human Services.

1.45.15               Illegal Well shall mean a well as defined by Sections 46-656.07(5) and 46-1207.01, R.R.S.

Rule 2. FLOWMETERS

2.01          Each well requiring a permit shall be equipped with a flowmeter which shall be installed, operated, and maintained in accordance with the following standards and specifications:

2.01.01               Meters installed under these specifications shall comply with the applicable provisions of American National Standards Institute, American Water Works Association's standard number C704-70.

2.01.02               Each meter shall be installed and calibrated to pipe size.

2.01.03               Flowmeters shall be of the velocity propeller or sensor type, and made of noncorrosive materials

2.01.04               The meter registry shall have a visual volume recording totalizer, which shall record in acre-feet, acre- inches, or gallons.

2.01.05               The registry shall be protected from the elements. Totalizers shall have sufficient capacity to record for the period of one year the quantity of water diverted from each well. Totalizers shall be direct reading and the multiplier shall be clearly indicated in which the rate of flow can be determined by timing.

2.01.06               The meter shall have a rated accuracy of plus or minus two (2) percent of actual flow within the range of flow for which the meter is designed. The meter shall be capable of accurately registering the expected operating range of discharge.

2.01.07               The meter shall have a pressure rating to fit the application used within its designed pressure range.

2.01.08               The meter size, serial number and the direction of flow shall be clearly stamped on the body of the meter. The inside pipe diameter for which the meter has been calibrated shall be clearly shown on the meter to the nearest 0.001 of an inch.

2.01.09               The meter shall be installed in accordance with the manufacturer's specifications and in such manner that there will be a full pipe flow of water at all times while water is being measured.

2.01.10               The meter shall be placed in the pipe not less than five pipe diameters downstream from any valve, elbow or other obstructions, which might create turbulent flow or as, recommended by the manufacturer. There shall also be at least one pipe diameter of unobstructed flow on the downstream side of the meter.

2.01.11               The meter propeller shaft shall be positioned parallel to and aligned with the centerline of the pipe.

2.01.12               Meters should be kept clear of debris and other material, which might impede operation.

2.02          When meters are removed for servicing or replacement, records of meter readings should be kept.

2.03          It shall be unlawful for any person to willfully injure, alter, remove, reset, adjust, manipulate, obstruct, or in any manner interfere with or tamper with any flowmeter within the Management Area for the purpose or with the intent to produce an incorrect, inaccurate or misleading measurement, without District consent, or to cause, procure or direct any other person to do so.

2.04          The District staff shall periodically check flowmeters on a random basis for reading and proper operation. The District staff may seal all flowmeters within the Management Area. No seal shall be removed without prior approval of the District.

2.05          Any malfunctioning flowmeter must be reported to the District Office at Imperial, Nebraska , within Twenty-four (24) hours after discovery. During the malfunctioning period, a substitute meter from the District, if available, shall be used to determine water consumption. If no such meter is available, any reasonable method of determining water consumption may be utilized.

2.06          The District may require any groundwater user to provide accurate information that will enable the District Staff to determine the amount of energy used to operate any well on which a meter is required. The groundwater user shall provide such information, or the groundwater user shall authorize the District Staff to procure such information from the entity, which provided such power. The District Staff shall seek such information in the event a flowmeter is malfunctioning, or if either the owner or operator or the District Staff has reason to believe the flowmeter reading is incorrect. If any power source on any well within the groundwater management area is equipped with an hour meter, the District may require the groundwater user to provide appropriate readings from said hour meter.

2.07          Diversions from wells connected to serve multiple points of use shall not be made prior to the water passing through the meter for the individual wells.  Wells with diversions before the meter in place and connected to serve multiple points of use, shall be modified no later than April 1, 2003 to comply with this rule.

Rule 3. IRRIGATED ACRES AND TRACTS

3.01          Every person shall annually report to the District the total number of acres, owned by them or under their control, irrigated in the District.

3.02          Certified Irrigated Tracts shall be identified by government survey descriptions. In all cases the description of each groundwater user's irrigated tract, or tracts, as contained in any recorded deed, or lease, shall be definitive.

3.03          Any replacement well shall be deemed to irrigate the same number of Certified Acres as the well which was replaced.

3.04          No additional acres shall be irrigated without prior approval by the District. The District shall consider the District’s obligation required by the Republican River Compact and impairment on other water users prior to granting any such approval.

Rule 4. WELL SPACING

4.01          Spacing of all wells, for which District permits are required, and regardless of ownership and classification, must be approved by the Board prior to drilling the well. New wells must be compliant with §46-651 in addition to the spacing requirements below adopted by the District:

4.01.01               New Wells - Any irrigation, commercial livestock, industrial, or municipal well drilled after August 31, 2000, must be at least 1,320 feet from any domestic or livestock well, and 5,280 feet from any other well not belonging to the owner or controller of the land upon which the new well is established.

4.01.02               Replacement Wells -With the exception of 4.01.01(b), any replacement irrigation, commercial livestock, industrial, or municipal well drilled after August 31, 2005, must be at least 1,320 feet from any domestic or livestock well and 5,280 feet from any irrigation, commercial livestock, industrial or municipal well not belonging to the owner or controller of the land upon which the replacement well is established.

a)         If the well to be replaced is within 1,320 feet of a domestic or livestock well, or within 5,280 feet of any irrigation, commercial livestock, industrial or municipal well not belonging to the owner or controller of the land upon which the replacement well is to be established, the replacement well must be drilled within 150 feet of the abandoned well it replaces.

b)        In the event any Statute of the State of Nebraska prescribes any well spacing requirement that is more stringent or restrictive than the well spacing requirement of Rule 9, the State Statute shall prevail.

Rule 5. INACTIVE STATUS WELLS

5.01          The Board at the request of any person or their legal representative, may place an active well into Inactive Status at the request of any person or their legal representative. 

5.02          Any All wells placed into Inactive Status shall comply and conform with all relevant state statutes, including those specifications defined in specifically §46-1207.02 (Reissue 2004)  as follows:

                (a)     The water well does not allow impairment of the water quality in the well or of the ground water encountered by the well;

               (b)     Within 45 days of being placed in inactive status, the top of the water well or water well casing has a water-tight, welded or threaded cover or some other water tight means to prevent its removal without the use of equipment or tools to prevent unauthorized access, to prevent a safety hazard to humans and animals, and to prevent illegal disposal of waste or contaminants into the water well; and

                (c)     Within 45 days of being placed in inactive status, the water well shall be marked so as to be easily visible and located and labeled or otherwise marked  so as to be easily identified as a water well and  the area surrounding the water well shall be kept clear of brush, debris, and waste material.

5.02.02               The well shall be marked in a permanent form with the Nebraska Department of Natural Resources registration number as a clearly legible engraving and raised metal embossing of the characters, or on a metal plate permanently welded, riveted or bolted to the casing.

5.02.03                Both the State and the District must be notified within 60 calendar days of when the change to Inactive Status is achieved and any subsequent changes of the status of the well.

5.02.04               Any well while on District approved Inactive Status shall:

                (a)     Maintain the previously granted number of Certified Irrigated Acres and Certified Irrigated Tract associated with such well;

               (b)     Maintain the amount of Allocation as it existed at the time the well was placed on Inactive Status;

                (c)     NOT accumulate any additional Allocation while on Inactive Status; and

               (d)     When be determined, at the time returned to Active Status, be provided an Allocation consisting  which shall consist of the amount of carryforward allocation at the time placed on Inactive Status, plus the annualized base allocation for each year remaining in the allocation period.  any allocation remaining in the allocation period.   While in an inactive status, the well shall not accure any annualized allocation.

Rule 6. CONNECTING WELLS

6.01          No wells shall be connected for any purpose or use without prior approval by the District.  In considering the granting of such approval the Board shall consider impairment of other water users; ownership; registration; the annual allowable withdrawal formula; and any other relevant information.

6.01.01               All wells proposed to be connected shall be legally registered with ownership current prior to submission of any request.

6.01.02               Plans to join wells will be evaluated using the Annual Allowable Withdrawal Formula and other data, as available.

Rule 7. PUMPING OF WATER ACROSS NRD BOUNDARIES

7.01          Groundwater pumped from another NRD to this District, or from this District to one or more other Districts, shall be subject to the Rules and Regulations of all involved Districts.

Rule 8. ALLOCATIONS OF GROUNDWATER

8.01          The current allocation which commenced on January 1, 2003 shall be deemed terminated as of December 31, 2004.  Commencing on January 1, 2005, each Certified Irrigated Acre within a Certified Irrigated Tract is hereby granted a base allocation of 40.5 acre-inches, an annualized allocation of 13.5 acre-inches, for the allocation period ending December 31, 2007, unless otherwise provided herein.  The current allocation period commencing January 1, 2003 and scheduled to terminate December 31, 2007 shall be terminated on December 31, 2004 and the remaining 3 years of allocation of 43.5 acre inches shall be removed from remaining allocation.

Does the removal of the language terminating the old allocation mean the old allocation remains in affect?  Obviously that is not the intent but the removal of the language is interesting.

 

8.02          Groundwater users pumping less than the total of their base basic allocation  and their together with unused carryforward from prior allocation periods may carryforward  the unused balance  the total forward to subsequent allocation periods at the expiration of the current allocation period.

8.02.01               If, at the termination of the allocation period, any groundwater user has exceeded his allocation and banked carryforward, his basic allocation for the next allocation period shall be reduced by the amount of such exceedance. number of acre-inches by which he exceeded said allocation and carryforward

8.02.02               Certified Acres in any land or irrigation retirement program including, but not limited to Federal Conservation Reserve Program, EQIP, CREP, or other incentive programs shall not receive an allocation during the term enrolled. Certified Irrigated Acres being removed from any retirement program shall be granted an allocation prorated to the years remaining in the allocation period. In addition, upon removal from the land or irrigation retirement program, CRP, each Certified Acre shall receive the total of the carryforward accumulated at the time of enrollment.

8.02.03               On or before March 1, 2006 the Board of Directors shall commence deliberations concerning groundwater allocations for the succeeding allocation period to start January 1, 2008. Such deliberations shall be completed before August 31, 2006, and an allocation for the succeeding allocation period shall be established.

8.03          All Industrial Wells shall have an allocation prior to operation. The owner of each industrial well shall, on or before January 15 of each year, apply for an allocation for that calendar year on forms provided by the District.

8.04          Commercial Livestock Wells may be allocated an annual maximum of 22-acre feet per 1000 animal units, designated for an approved capacity.

8.05          Each municipality is hereby granted without further application, an annual allocation computed as designated in the District Technical Manual.

8.05.01               An allocation of gallons equal to the number produced by multiplying the population of the municipality as determined by the most recent Federal Census by 91,260; and An additional allocation of acre inches stated in gallons equal to the number produced by multiplying one third (1/3) of the non-agricultural acres of land within the municipality by the Annualized Allocation for irrigated acres as stated in 8.01. Each municipality shall report the total number of non-agricultural acres within its limits to the Board at the time of any annexation or elimination of territory to or from its limits.

8.06          Allocations for any and all wells may be amended, reduced, increased, or made subject to limitations or conditions upon notice and hearing.

8.07          The District shall institute formal adjudicatory proceedings and initiate any action provided by law to prohibit further withdrawal of groundwater in the event any groundwater user shall exhaust or exceed their allocation prior to the termination of the applicable allocation period or shall in any other manner violate the amount, limitation, or any other conditions as established by these rules and regulations or by order of the District.

Rule 9. WATER SHORT YEAR ADMINISTRATION

9.01          Water Short Year Determination: No later than the 1^st day of October of each year the Department of Natural Resources shall inform the District of a potential designation of a water short year for the upcoming irrigation season.  Upon receipt of such determination, the District shall provide notice of such designation to irrigators and all other parties in interest as provided by these rules and regulations, and Nebraska law.  The Board shall consider and adopt any additional action necessary to meet the District’s proportional share of its responsibility for to maintaining Nebraska ’s compliance with the Republican River Compact Settlement Agreement.

“Adopt any additional action necessary.”  A very wide open commitment.

 

9.02          Additional controls may controls may consist of, but not be limited to, incentive programs, regulations, management practices, and any other relevant practice deemed appropriate to achieve adequate administration.

Rule 10. POOLING

10.01      The Board may approve pooling of groundwater allocations.

10.01.01           Pooling contracts approved prior to the adoption of these rules and regulations (Order 28) will remain in force unless the owner requests the pool be dissolved and shall be subject to the following stipulations:

                (a)     A pooling contract shall not result in more groundwater being withdrawn from the aquifer within a Township than the groundwater user has been allocated for Certified Irrigated Acres in Certified Irrigated Tracts within that Township.

10.01.02           Pooling contracts approved after the adoption of these rules (Order 28) will remain in force unless the owner requests the pool be dissolved and shall be subject to the following terms and conditions:

                (a)     A pooling contract shall not result in more groundwater being withdrawn from the aquifer within a Floating Township than the groundwater user has been allocated for Certified Irrigated Acres in Certified Irrigated Tracts within that Floating Township .

               (b)     A Floating Township shall include all Certified Irrigated Tracts watered by wells located within the Floating Township , except those tracts included in another Floating Township in the case where Floating Townships overlap.

                (c)     Certified Irrigated Tracts will not be eligible to be moved from one Floating Township to any other Floating Township within a pooling contract, except when the change is the result of adding or removing tracts from the contract due to change of ownership.

               (d)     The pooling contract application shall be denied or conditioned to the extent that it is necessary to (1) ensure the consistency of the contract with the purpose or purposes for which the management area was designated, (2) prevent adverse effects on other ground water users or on surface water appropriators, (3) meet the District’s proportional responsibility for maintaining Nebraska’s  maintain compliance with the Republican River Compact, and (4) otherwise protect the public interest and prevent detriment to the public welfare.

10.01.02 (d) is so broadly worded so as to allow the District to deny the modification of a pool at will.  If the District needs to reduce water usage, then when land is bought or sold, new pool arrangements may be discriminated against as compared to existing pools.

 

                (e)     The District shall review such pooling contract applications and at the April board meeting approve, with or without conditions, or deny the permit within thirty (30) days. An incomplete pooling contract application shall be returned for correction. If correction is not made within sixty (60) days the application shall be cancelled.

10.01.03           No new pooling contract shall be approved which contains any Certified Irrigated Tract  with no available which has no unused allocation or carryforward of groundwater.

10.01.04           Pooling contracts between individuals, partnerships and corporations and other owners of Certified Irrigated Tracts require the signature of the owner or a party with appropriate power of attorney and proof of ownership for each Irrigated Tract included in the pooling contract.

10.01.05           Proof of ownership must be provided prior to termination of any pooling contract.

10.01.06           Pooling contracts, or changes to pooling contracts, must be submitted in writing with all required signatures to the District on or before March 31 of the year and approved by the Board before they are implemented, except when pooling contracts or changes to pooling contracts are the result of a change of ownership of Irrigated Tracts included in the pooling contract.

10.01.07           Certified Irrigated acres enrolled in any land or irrigation retirement program including, but not limited to Federal Conservation Reserve Program, EQIP, CREP, or other incentive programs shall not be included in a pooling contract.

10.01.08           A Certified Irrigated Tract removed from any land or irrigation retirement program may not be included in a pooling contract within five (5) years of the date said Tract is removed.

10.01.09           If a change of ownership of any Certified Irrigated Tract in a pooling contract occurs, the unused groundwater allocation for said Tract shall remain with said Irrigated Tract. The Board may, upon the written request of the owner or owners of the Tracts, equalize the unused groundwater allocation among the irrigated acres in each involved.

10.01.10           Purchased Certified Irrigated Tracts or purchased dry land tracts to be developed for irrigation, will not be eligible to be pooled with any other Certified Irrigated Tracts or Tracts for a period of three (3) irrigation seasons from the date the purchase is made. Tracts that are purchased may be pooled if originally pooled in the same pooling contract.

Rule 11. TRANSFERS

11.01      Board approval must be received prior to the transfer of all or a portion of any groundwater allocation to another tract or use.

11.02      The tracts must be under the ownership or control of the same groundwater user except as provided for in Rule 12. No transfer may occur without the knowledge and consent of the owners of all lands involved, including any lands over which the groundwater is transported.

11.03      Transfers shall be denied or conditioned to the extent that it is necessary to (1) ensure the consistency of the contract with the purpose or purposes for which the management area was designated, (2) prevent adverse effects on other ground water users or on surface water appropriators, (3) maintain compliance with the Republican River Compact Settlement Agreement, and (4) otherwise protect the public interest and prevent detriment to the public welfare.

11.04      In making its decision the District may use the following information obtained by application of the Annual Allowable Withdrawal Model as described in Technical Manual 28.  The Board may consider the following information including but not limited to:

11.04.01           The trend of change in the level of the aquifer over time from District records;

11.04.02           Other transfers into the area in proximity to the receiving well;

11.04.03           The total usage in proximity to the receiving well; and

11.04.04           Other factors that would increase the rate of consumptive use in the area of the receiving well in making its decision.

11.05      Expedited transfers may be made by approval of the Board provided the following conditions are met:

11.05.01           All acres transferred are within a Township or Floating Township .

11.05.02           The transfer does not result in an increase in certified or irrigated acres.

11.05.03           The tract receiving any acres must have been previously irrigated.

11.05.04           Only existing wells shall be used to irrigate the resulting tracts. 

11.06      Upon the recommendation for approval by the manager and two (2) Board members, the expedited transfer application shall be submitted to the Board for official action.

11.07      Nothing set forth in the above section shall be constituted as allowing development of any new wells or prohibit a person seeking a transfer from pursuing a variance from these rules and regulations as set forth herein.

Rule 12. GROUNDWATER QUALITY

12.01      The Board shall implement procedures to monitor and protect the quality of the aquifers underlying the District. All areas in the District shall be considered as Phase I areas until at least June 1, 2005.

12.02      Implementation Processes and Procedures:

12.02.01           Deep soil testing, ground water well testing and standard soil sampling will be used to determine contaminant levels throughout the district and to determine the geographic and stratigraphic boundaries of any territory for which controls for ground water quality may be proposed.

12.02.02           Controls, rules, and regulations that may be proposed for ground water quality will be based on a three-phase program. Phase I shall include all territory in which levels of nitrate nitrogen contamination, or any contaminant harmful to health or the environment, are 0% to 40% of the allowable level as determined by the Nebraska Department of Environmental Quality. Phase II shall include all territory in which levels of nitrate nitrogen contamination, or any contaminant harmful to health or the environment is over 40%, but less than 60%, of the allowable level as determined by the Nebraska Department of Environmental Quality. Phase III shall include all territory in which levels of nitrate nitrogen contamination, or any contaminants harmful to health or the environment, is 60%, or over, of the allowable level as determined by the Nebraska Department of Environmental Quality.

12.02.03           In Phase I territories yearly monitoring ground water samples will be conducted by the District.

12.02.04           When it is determined by the District, or there is reasonable cause to believe that the identified contamination is point source contamination; the District will request the Nebraska Department of Environmental Quality to make a determination if the contamination is point source.

12.02.05           The District will take ground water and deep soil samples to determine whether ground water is contaminated. Ground water samples will be taken in not less than fifty (50) locations throughout the District. If a particular sample indicates contamination in excess of the levels established for Phase II or Phase III, the District will take a minimum of twelve (12) additional ground water samples in a radius of three (3) miles or the identified contamination. The District will make a map of the subject area divided into four (4) equal areas from the location of the ground water sample source, which shows contamination. The total area of said map would be approximately 6 miles square. Should 26% of the not less than twelve (12) samples taken indicate contamination of more than 40% of the allowable level is determined by the Nebraska Department of Environmental Quality, the subject shall become designated a Phase II area. Should 26% of the not less that twelve (12) samples taken indicate contamination of 60%, or more of the allowable level as determined by the Nebraska Department of Environmental Quality, the subject shall become designated a Phase III area. If villages, cities or towns lie in the said three- (3) mile radius, the water samples shall be taken the municipal wells as one of the required twelve (12) samples.

 

12.02.06           The District will initiate education programs for ground water users regarding non-point and point source pollution.

12.02.07           The District will initiate a ground water quality study which will include deep soil testing, ground water sampling to identify types of contamination, identification of the best management practices to control contamination, and other research as funds become available.

12.02.08           In Phase II areas the District may:

                (a)     Require ground water users to take nitrate nitrogen and irrigation management training and        education.

               (b)     Implement irrigation scheduling.

                (c)     Require ground water users to limit commercial fertilizer applications to University of Nebraska published recommendations.

               (d)     Require that soil samples be taken to determine nitrates remaining in the soil at 1, 2 and 3 foot levels.

                (e)     Require nitrogen application use be reported to the District on forms to be provided.

                 (f)     Require all types of commercial fertilizer use to be reported to the District on forms to be provided

12.02.09           In Phase III areas the District may:

                (a)     Implement any rule, regulation or control authorized for Phase II areas.

               (b)     Restrict the use of fall and winter application of commercial nitrogen fertilizers in designated fields for spring planted crops unless inhibitors approved by the District are used in conjunction with such applications.

                (c)     Implement other restrictions on chemical use as determined necessary or advisable by       investigations, studies, or research.

 

Rule 13. MORATORIUM

13.01      Pursuant to §46-714739(1)(Reissue 2004), to achieve the purposes for which the Management Area was designated, there be no additional permits to construct a new water well issued nor shall there be an increase of irrigated acres within the entirety of the District.  stays shall be imposed on the construction of any new water wells and the increase of irrigated acres within the District.

13.02      The Board if permitted by State law may, upon further deliberation, and notice and hearing, open designated areas of the District to additional well permits and allocations.

Rule 14. GENERAL ENFORCEMENT PROVISIONS

14.01      The District may at any time order of the District staff to investigate any matter within the jurisdiction of the Board or may order any hearing which the Board is authorized either by law or inherent power to conduct.  The Board may require the attendance of any person at such hearing. 

14.02      The Board, at its discretion, may grant variances from the strict application of these rules and regulations upon good cause shown.

14.03      Owners or operators of shall allow the District staff to enter upon any land, after requiring notice as provided by law, for the following purposes:

14.03.01           To determine the amount of groundwater withdrawn by any well;

14.03.02           To inspect any flowmeter to insure proper installation, operation, and maintenance;

14.03.03           To inspect any chemigation system to insure proper installation, operation, registration, and maintenance; and

14.03.04           For any other reason necessary to implement administer and discharge the duty of the District as mandated by order, rule, regulation, control, or statute.

14.04      The District shall enforce the provisions of the Groundwater Management and Protection Act, the Chemigation Act, its orders, rules, and regulations adopted pursuant thereto by the issuance of cease and desist orders and by bringing, or defending, appropriate actions in the district court of the county in which any violations occur for enforcement of such orders. Such enforcement action shall consist of any one or combination of the following sanctions:

14.04.01           Issuance of a Cease and Desist Order pursuant to the Groundwater Management and Protection Act;

14.04.02           Reduction of Allocation in whole or in part for a period to be specified by the board, but not limited to the current allocation period;

14.04.03           Reduction of Carryforward Allocation carried forward from previous allocation periods in whole or in part;

14.04.04           Reduction in the number of Certified Irrigated Acres on the tract in whole or in part; and

14.04.05           Revocation of chemigation applicator’s permit.

14.05      Any person who increases irrigated acres without consent of the Board or fails to comply with conditional requirements associated with variances conditionally granted shall be subject to one or any combination of the sanctions set forth in 14.04:

14.06      Any person who Chemigates without an applicator’s certificate or without proper chemigation equipment pursuant to the Chemigation Act shall be subject to one or any combination of the sanctions set forth in 14.04.

14.07      Owners of Irrigated Tracts receiving an Allocation on Certified Irrigated Acres are responsible for installing, inspecting, and maintaining the proper installation and operation flowmeter(s) pursuant to these rules, failure to do so shall subject the owner to one or any combination of the sanctions set forth in 14.04.

14.08      Any person who tampers, obstructs, modifies or takes any other action with the purpose of producing an inaccurate or incorrect flowmeter reading as set forth in Rule 2 within the Management Area or who takes any other action that would prevent the District from obtaining an accurate estimate of actual water use the owner shall be subject to one or any combination of the sanctions set forth in 14.04.

14.09      In assessing a sanction, the District shall consider the degree and extent of the violation, the size of the operation, whether the violator has been previously determined to have violated a cease and desist order, controls, rules, or regulations of the District, the urgency of remedial action, and any economic benefit derived from noncompliance.

14.10      Any person within the District, or the Board on its own motion, may file a written complaint alleging violations of these rules and regulations, orders, controls, and any provision for enforcement provided by State statute. Complaints shall be filed at the District office, 135 West 5th Street , Imperial , Nebraska . 69033.

14.11      The District shall investigate potential the alleged violations. In the event a violation is discovered by the staff or resulting from a compolaint under Rule 14.10, Upon completion of the investigation, the District Staff shall file a report with the Board and deliver copies of the report to the alleged violator and to the complainant, if other than the Board, in person, or shall transmit the same by certified mail.

14.12      If the District staff finds there is reasonable cause to believe that a groundwater user is at the time of investigation, or was at the time complained of, in violation of District rules and regulations, then said report shall be accompanied by a formal notice of the alternative actions available to the alleged violator. Alternative actions available to the person complained against shall be:

14.12.01           Agree with and consent to the District staffs’ findings that the alleged violation has in fact occurred or is occurring, consent to cease and desist from continuing or allowing the reoccurrence of such violation, and submit a plan and schedule of compliance. The District shall determine whether the plan and schedule will bring that user into compliance with District rules and regulations. If the Board determines that the proposed plan and schedule are adequate, it shall approve such plan and schedule of compliance.

14.12.02           Reject the findings of the report, and within 30 days request a formal adjudicatory hearing.

14.13      The Board shall notify the person filing the complaint of any action. If no objections to the        action of the Board are received, the action of the Board on the written complaint shall be considered as final.

14.14      If the person filing the complaint objects to the Board action, he may within 30 days of the Board action, request a formal adjudicatory hearing.

14.15      When an alleged violator has been notified of Board action and such alleged violator has failed to respond thereunder, or has failed to appear at any properly scheduled formal adjudicatory hearing, the Board shall: 

14.15.01           Review the complaint and the report, as well as any other pertinent information; and

14.15.02           Issue such order or orders in accordance with these rules and regulations, as it deems appropriate.

Rule 15. FORMAL ADJUDICATORY HEARINGS

15.01      Formal Adjudicatory Hearings will be conducted by the District for the following purposes:

15.01.01           Any purpose set out in the Rules and Regulations of the District.

15.01.02           From an adverse decision on a request for variance at the request of the aggrieved party.

15.01.03           On approval of the Board, to resolve disputes between groundwater users and others, pertaining to allegations of illegal irrigation groundwater run off or any other matter governed by these rules and regulations and delegated to the District by state statute. dispute on a majority vote by the Board of Directors.

15.02      A request for a formal adjudicatory hearing must be made within thirty (30) days of the District’s determination.

15.03      The District shall appoint a hearing examiner who shall conduct formal hearings.

15.04      The District or the hearing examiner shall prepare a notice setting the time and place of the formal hearing.

15.05      The District or the hearing examiner may grant continuances and the Board may at any time order a continuance on its own Motion.

15.06      The District or the hearing examiner may require stipulations on procedure to define the issues, or for any purpose designed to expedite the matter or to insure substantial due process or fairness.

15.07      The District or hearing examiner may request or permit the submission of briefs.

15.08      An official record of any official hearing conducted pursuant to statute or the rules and regulations of the District shall be preserved in the official record taken at the hearing. Such records shall include all testimony and exhibits presented at the hearing. Such record shall whenever possible be kept by a court reporter to be procured by the District. Such record or a copy thereof shall be kept on file in the office of the District. The costs of creating the record, of and the hearing examiner, and other hearing related costs may be assessed against the unsuccessful party or parties in whole or in part, at the discretion of the Board, upon its final decision. after final action by the District.

15.09      When the Board shall deliberate the record of an official hearing as a quasi-judicial body the provisions of the Nebraska public meeting laws shall not be applicable as provided by §84-109(1)(ii).

15.10      All orders and decisions of the Board shall be transmitted to the parties directly involved in the hearing by certified mail.

15.11      The Board may at any time order the District staff to make an investigation into any matter within the jurisdiction of the Board or order any hearing which the Board is authorized either by law or inherent power to conduct. In the event of an investigation, the Board may request the attendance of any party.

15.12      Any person aggrieved by an order or action taken by the Board following an formal adjudicatory hearing may appeal in accordance with the Administrative Procedures Act.

Rule 16. GENERAL PROVISIONS

16.01      Supplemental Rules and Regulations specified in Part VI of the District Technical Manual (TM-28) are incorporated into, and considered as an integral part of these rules and regulations and are applicable in concert with the rules and regulations specified herein as the Rules and Regulations for Groundwater Control of the Upper Republican Natural Resources District Management Area.

16.02      If any rule or any part of any rule herein and/or in the District Technical Manual shall be declared invalid or unconstitutional, such declaration shall not affect the validity or constitutionally of the remaining portions thereof.

16.03      These rules and regulations may be amended following proper notice and hearing.

16.04      These amended rules and regulations replace all prior orders, the last effective date