WaterClaim comments in blue

 

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 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.

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.  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.  These percentages vary by a very large amount based on the geology and the distance from the stream.

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.

The water policy makers are effectively arguing that it isn't fair to reduce usage from only those wells that cause the stream flow depletion.  They argue that because someone has lost a limb everyone must all lose a limb in sympathy.

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 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.”

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 reduction from the current 14.5 acre inch allocation described above to a 13.5 acre inch allocation.  Based upon its calculations, NDNR 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 reductions actually achieved by each District 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.

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 baseline 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.

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 basinwide 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 EQIP; 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).  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:

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 associated streamflow depletions in the URNRD from the 1998-2002 baseline.  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.

A 5% reductoin in all groundwater pumping will not result a 5% change in the streamflow depletion. 

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, 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 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 49%, then the URNRD is agreeing to reduce usage by 4,900 AF for another District’s over usage.

The 49% of the share the URNRD is agreeing to be responsible for does not take into consideration the amount of water used by the Tri Basin or the Surface water usage.  Historically surface water water users have used up to a third of all of Nebraska's allowable consumptive use. Here the URNRD is agreeing to make up 49% of any excess use caused by any user group.

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 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 in proportion to each District’s 1998-2002 baseline pumping figures for both the five-year running average and for water short year compliance.

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.

 

   

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.

                (a)     Replacement Wells -With the exception of 4.01.01(b), any 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.

               (b)     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.

                (c)     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.  Any well placed into Inactive Status shall comply and confirm with all relevant state statutes, specifically §46-1207.02, as follows:

5.01.01               The water well does not allow impairment of the water quality in the well or of the Groundwater encountered by the well;

5.01.02               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

5.01.03               The water well is marked so as to be easily visible and located and is labeled or otherwise marked so as to be easily identified as a water well and the area surrounding the water well is kept clear of brush, debris, and waste material.

5.01.04               The well shall be marked in a permanent form with the Registration Number as a clearly legible engraving, raised metal embossing of the characters, or on a metal plate permanently welded, riveted or bolted to the casing.

5.02