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The Agreement How does the Republican River Agreement When water is pumped out of the ground, then the amount of water oozing out of the aquifer via springs is reduced. However, the effect is not immediate. Multiple factors, such as geology and distance from the stream, have a large influence on the amount of time before irrigation or precipitation is noticed at the stream. For example, a well ten miles from the stream may not have any measurable impact on the stream for a hundred years, while a well two miles away may start to have an impact after only three years. This delay is called the Lag Effect. According to the DNR, all water pumped from the ground would have been in the stream at some point in time, if it had not been removed by man. Man is responsible for replacing the water at the time it would have arrived at the stream. So, if a farmer two miles from the stream removes 100 acre feet of water from the ground in year 1 and then shuts his well off and never pumps it again, then the farmer will owe the river 100 acre feet when that water would have naturally seeped into the river. That debt to the river will come due over a period of years after the water was pumped. For a well close to the stream, the effect of pumping in year 1 will not be noticeable to the stream in the first year or the second year. In the third year after the water was pumped, the pumping will cause a 10% reduction in flow. In year four, there may be a 9% reduction in flow caused by the pumping four years earlier. These reductions in flow continue until all 100 acre feet of water that the farmer pumped are accounted for. For a farmer that is far from the stream, his obligation to the stream may not start until 50 years after he begins to pump, and the depletions he causes may be spread out over 200 years. Think of it as a debt incurred with a delayed set of payments. When the debt is due varies by geology and distance. There are other factors as well, but these are the two key ones. Irrigation began in the 1950’s in the Some of the wells placed in the 1950s that are far from the stream are just now beginning to have an effect on the stream. Even if every one of those wells were to be shut off permanently, the decades of pumping would continue to have a negative impact on the stream flow for several more generations. The computer simulation agreed to by the three States (KS, CO, NE) attempts to estimate the annual impact of past pumping. Prior year pumping causes most of the depletions to the stream today. By our estimate, about 90 to 95% of the current year depletions to the stream are caused by water that was pumped prior to the current year. That means what precipitation we receive in any one year and the adjustments we make to pumping in any one year will not have an immediate effect on the stream. The effect of precipitation and pumping is delayed and, it may be years before they affect the stream. It is important to note that about 60% to 80% of the reduced flows are caused by conservation practices that are not taken into consideration by the computer simulation. This is a major flaw in the Model, which needs to be modified to reflect reality. This write up is a description of how the Model works. The Model and reality may be two different things. Because the three States agreed to the Model and because the Supreme Court approved the Agreement, how the Model works becomes reality -- even if it isn’t correct. The Model says most of the reductions in stream flow this year are the result of the accumulated effects from the past 50 years. Current year pumping and precipitation have only about a 5% to 10% effect in the year they occur. As programs such as CREP take irrigated land out of production near the stream, future modifications to the water allocation a farmer receives will be delayed even more because the adjustments will only affect wells far from the stream. The drought of 2002 or the short-term weather patterns
have a minimal impact on the State’s compliance. If one looks at the numbers, you will find
there is no correlation between precipitation and the amount of water that The reason current precipitation and current pumping have so little effect is because the Model looks at the entire basin. Most of the precipitation that falls far from the stream either evaporates or soaks into the aquifer. Only the precipitation events that are large enough to get to the stream within a few days result in a current year increase in allocation. The large-scale conservation practices required by the
federal government have significantly slowed and reduced the amount of water
that can get to the stream. According
to a study by In the last 50 years, there has been a significant reduction in stream flow; however, shutting off wells will not result in a return of the flows, at least not until the aquifer is recharged. Even with every irrigation well turned off, it will take a very long time to return the aquifer to its peak level (where it was in the 1960s). Recharge depends on the soil type and amount of precipitation. In places with clay soil, recharge may take 15 to 20 times as long as the time it took to remove the water. So if a well removed water for 50 years, then it may take 1,000 years to recharge the aquifer via normal precipitation. For areas with very sandy soil and minimal vegetation, it may take 100 years to return the aquifer to its peak. The Agreement with So, how could The second possible reason is incompetence. There is substantial evidence that the
people making the Agreement had no idea to what they were agreeing. They said they thought they were agreeing
to a 5% reduction in existing usage and then a 1% reduction in usage each
year thereafter until irrigation was gone.
The negotiators apparently never ran the computer simulation to see on
what they were agreeing. If they had
run the simulation, it would have been obvious that there would be major
problems with compliance, even if there had not been a drought. If the simulations were run and the
negotiators knew the consequences, then the negotiators lied to the people of
the State and betrayed Regardless of the integrity or the competence of the
negotiators, Compliance – We cannot control the weather, nor can we reduce the past 50+ years of pumping. Because these two uncontrollable factors make up 90% to 95% of the formula for compliance, modification of what a farmer pumps each year is nearly meaningless. Therefore, the only way to comply is by supplementing the Basin with imported water in the years it is required. Modification of the Agreement – We have not looked at this option in depth before because it requires a high-ranking politician, such as the Governor, to make these challenges. Until recently, there was no evidence that any such politician was willing to discuss the concept. Now that a candidate for Governor with a good chance of winning is willing to talk about this option, we will explore the options in more depth. There are three legitimate arguments for modifying the Agreement: 1. The 1943 Compact allows for modifications to the allocation, if there are significant changes in the flow of the stream. There have been two major causes of change since 1943. The first is the conservation practices, which have reduced stream flow by up to 80%. The second is the ruling that groundwater seepage should play a major role in the formula. 2. The Agreement specifically forgives debts from pumping prior to 2002. 3. The Agreement was made in bad faith. The
1. Compact
Provision The 1943 Compact specifically allows for a
modification of the allocations, if there is a significant change of the
flows. There have been two major
changes to the flow since 1943. The
first change is the reduction of run off into the stream because of the
conservation practices required by the federal government. According to a If the stream flow today is 30% of what it averaged in 1943 and up to 80% of that reduction was caused by federal programs that almost no one wants to see reversed, then there is a good cause to reexamine the Agreement. The second change is how flows are calculated. The decision by the US Supreme Court that ground water should be a part of the allocation is a major change. The seepage rate of the aquifer from the 1940s was guessed. That is compared to the guessed seepage rate from the aquifer today. The difference between the two guesses is assumed by the Model to be caused by irrigation. This change in calculation methods has a major effect
on the total quantity of water in the formula. In reality, this increases the amount of
water that should be present but does not exist. The formula requires a major increase in
the water it expects to see and penalizes These two changes provide grounds for a renegotiation of the 1943 Compact. Some express concern that if the Compact is reopened, the Endangered Species Act will create more problems than the reopening is worth. However, with the recent modification of the Act and the fact that there are no endangered species in the Basin, the concerns do not seem a legitimate justification to ignore this option. “Article III The specific allocations
in acre-feet hereinafter made to each State are derived from the computed
average annual virgin water supply originating in the following designated
drainage basins, or parts thereof, in the amounts shown: … Should the future computed virgin water supply of any source vary more than the (10) percent from the virgin water supply as hereinabove set forth, the allocations hereinafter made from such source shall be increased or decreased in the relative proportions that the future computed virgin water supply of such source bears to the computed virgin water supply used herein.” Quoted from the 1943 Table showing the 1943 Virgin Water Supply as compared to the 2004 Virgin Water Supply as agreed to by the three States.
As can be seen from the table, the Virgin Water Supply
has changed by more than 10% for all but the North Fork of the Republican
River and the Main Stem of the The amount of water seeping from the aquifer now has a direct bearing on the Virgin Water Supply, where it did not before 2002. This change in how the formula is computed could result in a significantly different distribution of the water. We estimate that
2. Forgiveness
of prior to 2002 pumping The existing Agreement forgives all damages caused by pumping prior to 2002. "Upon the Court’s approval of this Stipulation and entry of the Proposed Consent Judgment, the States agree that all claims against each other relating to the use of the waters of the Basin pursuant to the Compact with respect to activities or conditions occurring before December 15, 2002, shall be waived, forever barred and dismissed with prejudice. These claims shall include all claims for Compact violations, damages, and all claims asserted or which could have been asserted in the pending proceeding, No. 126, Original." Final Settlement, page 6 A key question is, did this Agreement forgive the
future effects that pumping prior to 2002 has on today’s calculations? In other words, since a well in place in
1970 is still having an effect on the stream in 2005, did the Agreement
forgive all delayed effects through 2002?
The Agreement can be read that way.
If the Agreement is interpreted this way, then It is obvious that was not the negotiators’ intent. Yet, the language of the Agreement could
easily be read that way. One possible
solution would be for This idea would require a Governor or Attorney General with the backing of the Governor to work aggressively to make it happen.
3. Agreement
made in bad faith After The Agreement The
Summary In summary, |
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