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Responsibility of the United States
Government for the The following is an excerpt from the Republican River Compact, signed in 1943 and ratified by the US Congress. The Settlement Agreement consented to by Colorado, Nebraska, and Kansas in 2003 did not modify the original Compact. We have highlighted the phrases in the Compact that we would like to emphasize. Republican River Compact Article XI This compact shall become operative when ratified by the Legislature of each of the States, and when consented to by the Congress of the United States by legislation providing, among other things that: (a) Any beneficial consumptive uses by the United States, or those acting by or under its authority, within a state, of the waters allocated by this compact, shall be made within the allocations hereinabove made for use in that State and shall be taken into account in determining the extent of use within that State. (b) The United States, or those acting by or under its authority, in the exercise of rights or powers arising from whatever jurisdiction the United States has in, over, and to the waters of the Basin shall recognize, to the extent consistent with the best utilization of the waters for multiple purposes, that beneficial consumptive use of the waters within the Basin is of paramount importance to the development of the Basin; and no exercise of such power or right thereby that would interfere with the full beneficial consumptive use of the waters within the Basin shall be made except upon a determination, giving due consideration to the objectives of this compact and after consultation with all interested federal agencies and the state officials charged with the administration of this compact, that such exercise is in the interest of the best utilization of such waters for multiple purposes. (c) The United States, or those acting by or under its authority, will recognize any established use, for domestic and irrigation purposes of the waters allocated by this compact which may be impaired by the exercise of federal jurisdiction in, over, and to such waters; provided, that such use is being exercised beneficially, is valid under the laws of the appropriate State and in conformity with this compact at the time of the impairment thereof, and was validly initiated under state law prior to the initiation or authorization of the federal program or project which causes such impairment.
Article XI of the Compact does two things. One, it states any depletion caused by the United States or its agents will be taken into account. Two, it states that the full use of all water is important to the Basin. For a copy of the Compact, see http://tinyurl.com/cj2pd. James Koelliker, scientist with Kansas State University, says: “Conservation techniques began to emerge in the 1930’s following the disastrous drought. National programs to reduce erosion soon were developed.” These include soil and water conserving techniques including terracing, conservation tillage, farm ponds, and watershed dams. The Federal Food Security Act of 1985 required farmers to put in place conservation practices that minimized the impact of water and wind erosion. To remain eligible for the Farm Program, farmers were required to put in terraces and farm in such a way to minimize water runoff from the field. The Federal Government shared in the cost of many of these activities. Most of the terraces are on non-irrigated ground. The State of Nebraska still pays up to 75% of the cost of these conservation programs. From 1997 to 2004, Nebraska installed:
Kansas State Scientist, James Koelliker, says 60% to 80% of the stream flow depletion is caused by conservation practices. See http://tinyurl.com/9fsks. The computer simulation, used by Nebraska, Kansas, and Colorado to calculate compliance, does not take into consideration the effect of conservation practices on the stream. According to the Compact, any Federal effect on consumptive use within the Basin will not interfere with existing uses without full consideration. That didn’t happen. The nationwide conservation practices mandated by the Federal Government happened without any consideration of the increase in consumptive use they would cause in Nebraska and the effects on the rights of the existing users. When the Federal and State governments caused conservation practices to be put in place, they created new consumptive uses that caused depletions to the streams.
For the computer simulation used by the three States to be accurate, it must take these uses into consideration. Failure to do so will result in inaccurate predictions, ineffective policy being enacted, and a continuation of decreasing stream flows. The Model does not currently account for any consumptive use caused by conservation practices. Instead, the Model attributes all stream flow depletions to aquifer pumping. The people running the Model contend that the only way to stop the decline in the stream flow is to reduce aquifer pumping. But, the Modelers have chosen to ignore the primary cause of stream flow decline. As a result, even if aquifer pumping is reduced, the primary cause will remain in place and continue to have its effect. Just as in real life, if the true cause of a problem is not found and addressed, the problem will continue. The Federal Government, with the acquiescence and support of the State, has caused a large increase in consumptive use that is not accounted for in the Model. We know there has been a drop in the average annual Republican River stream flow since the late 1940’s of approximately 275,000 acre feet. If the reports that we cite are correct in that 70% of this reduction is due to conservation practices, then we know the Model is inaccurate and will fail to identify effective solutions. Most people support conservation practices but we cannot ignore their effect just because we like them. To modify the Model, the three States that make up the Republican River Compact Administration must agree to the correction. The Nebraska decision is controlled by the Governor. The alternative is for someone to ask the Court to make the correction.
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