Nothing Required

The State of Nebraska requires the local NRD to develop, in conjunction with the Department of Natural Resource Department (DNR), an Integrated Management Plan (IMP).  What does Nebraska law require of in an Integrated Management Plan?   The law addresses this by listing four requirements.    We have formatted the law to make it easier to read, but we have not changed any element.  We have highlighted what we believe to be a key section that states an NRD is not required to impose any new regulations on groundwater uses that existed prior to May 20, 2003, the date the DNR made the preliminary determination that the Republican River NRDs were fully appropriated.

Nebraska State Statutes 46-715 (2)(d)

In developing an integrated management plan, the effects of existing and potential new water uses on existing surface water appropriators and ground water users shall be considered.

An integrated management plan shall include the following:

(a) Clear goals and objectives with a purpose of 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, subbasin, or reach can be achieved and maintained for both the near term and the long term;  (emphasis ours)

(b) A map clearly delineating the geographic area subject to the integrated management plan;

(c) One or more of the ground water controls authorized for adoption by natural resources districts pursuant to section 46-739 of this act; and

(d) One or more of the surface water controls authorized for adoption by the department pursuant to 46-716 of this act. The plan may also provide for utilization of any applicable incentive programs authorized by law.  Nothing in the integrated management plan for a fully appropriated river basin, subbasin, or reach shall require a natural resources district to regulate ground water uses in place at the time of the department's preliminary determination that the river basin, subbasin, or reach is fully appropriated, but a natural resources district may voluntarily adopt such regulations.  (emphasis ours)

If the NRD and DNR cannot agree on an Integrated Management Plan, the issue is referred to the Interrelated Water Review Board.  This board is subject to the same requirements identified here in Section 715.  It cannot impose a plan that requires new regulations on existing ground water uses without the voluntary acceptance of the NRD.  See 46-719 (2)(c)

The State must still comply with the Republican River agreement with Kansas .  The law does not require the NRD to place new restrictions on existing groundwater uses.  Thus, the only way for the State to comply -- without voluntary reductions being made by the NRDs -- is for the State to persuade the landowner, through financial incentives, to stop irrigation.  According to this law, then, the burden of complying with the agreement is on the State as a whole, not the irrigators as individuals.   

The irrigators have been encouraged by the Constitution of Nebraska to irrigate.  The irrigator has done this in compliance with the laws of Nebraska and has done nothing wrong.  In fact, without irrigation, much of western Nebraska would be far more desolate than it is now. 

Does this mean the aquifer should be pumped dry?  Of course not.  The local people have a vested interest in making sure the water lasts as long as possible.  True, there will always be some who want to rape the aquifer and run when they are no longer satisfied, but the majority of the people who live here want to continue to do so and want to protect the resource that allows that to happen. 

If access to the aquifer is going to be reduced to the recharge rate, then this change needs to be planned by the people involved and affected by those changes.  It needs to happen over a long enough period of time that the very people we are trying to protect are not destroyed in the process of saving their future and their children's future.

This agreement with Kansas was agreed to by the State of Nebraska .  The NRDs were not involved in the process.  The State of Kansas sued the State of Nebraska , not the NRDs or the individual irrigator.  However, the State of Nebraska is now attempting to put much of the burden of compliance with the Settlement on the irrigator. 

When the Special Master ruled that the groundwater should be a part of the Compact, to the extent that it affected the stream, there was a major shift in the our world.  At this time, the State of Nebraska should have allowed the NRDs to be involved in negotiating their fate.  The fact, that the State blocked this participation by the NRDs makes the State liable for the agreement that it made. 

Nebraska law prohibits the State from forcing the NRD to make a change in how much water the irrigator can use.  The NRD may voluntarily make this reduction, but it does not have to. 

Yes, the NRDs should encourage and perhaps even require some reductions in use.  As technology improves, as hybrids improve, further reductions can be made.  In the last 20 years, the Upper Republican NRD farmers have reduced usage by almost 50%.  As the other NRDs move from gravity to pivot or drip irrigation, similarly significant savings will happen there also. 

As the invasive plant species are managed and the natural habitat is restored, additional savings will occur.  The amount of water used by invasive plants is far more than the water savings required by the Settlement.

Long term, America must find a way to manage its water better.  There is more than enough water to last for centuries, if the nation is willing to allow the local people to exist and participate in the process.
 

Nothing Required – Challenges

This section answers some of the common questions and statements that people have after reading section 46-715 (2)(d) of the Nebraska State Statutes. 

1.  Statement – Fully vs. Over Appropriated. “Even though this section of the law does not require the NRD to make reductions on water uses prior to May 20, 2003, it would if the DNR designated the district over appropriated instead of fully appropriated.”

Response - The only change in requirements for an over appropriated district as compared to a fully appropriated district is the need for the NRD and DNR to create a basin wide plan.  The basin wide plan is also subject to the same section of the law -- section 46-715 (2) (d) which you can read above.

2.  Statement – Interrelated Water Review Board.  “If the NRD and the DNR cannot agree on an integrated management plan, then it goes to the Interrelated Water Review Board.  They will remove pooling and carry over and take local authority away.”

Response – The IWRB is also subject to 46-715 (2)(d) as shown above.  The IWRB cannot force the NRD to make changes to water uses already existing prior to the preliminary designation of a basin as fully or over appropriated.

3.  Statement – The Settlement requires it.  “Even though the law may not require the NRD to make reductions, the Settlement agreement with Kansas makes that requirement.”

Response – The Settlement requires the State of Nebraska to reduce water usage, not the NRD.  It is up to the State to choose the method of compliance.  The NRDs were not a party to the Settlement agreement.

4. Statement – The DNR may insist that the NRD make reductions.  “Even though the State law does not require the NRD to make reductions and even though the Settlement does not place the burden on the NRDs, the State may still say that the problem is with the NRDs and that they must make changes.” 

Response – True, the State may make these claims, but neither the Settlement nor the State law requires this.  Any actions the NRD takes to reduce water usage that was in place prior to May 20, 2003 are voluntary. 

 5.  Statement – “The State has only to change the law to force the NRD to make the reductions.”

Response – Correct.  The State legislature could change the law to force the NRDs to comply with the State or the DNR’s wishes.  The State has to be careful not to violate the Constitution as it reduces property rights, but it is possible for the State to set laws that force the NRD to make changes.  Again, it requires a change in state law.    A well informed, active, and organized public is the only defense against this.  It is up to us.

WaterClaim believes it is important that the public understands that the NRD is not required to make any reductions, as has been indicated at the public information meetings by both the NRDs and the DNR as well as in the State Statutes.   The NRD may voluntarily make reductions, but they are not required.

This means that if the NRD chooses to make a 5% across-the-board cut or agrees to impose a tax for the retirement of acres, it is doing so because it wants to and not because the DNR can force this action.

So what happens to Kansas ?  Kansas will still require water reductions to take place.  But, since there is nothing in Nebraska State law that requires an NRD to impose greater restrictions than what are already in place, there is only one way for the State to comply with the Settlement.  The State can try to persuade the landowner to retire irrigated acres with financial incentives.   The local NRD may choose to participate in this process, but it is not required to do so. 

Even though this information is available to the NRD board, it is very possible that they will choose to make reductions they are not required to make.  The Middle and Upper Republican boards have several members that have publicly stated they want to reduce usage.  They have the right to voluntarily do this.  They are elected officials chosen by the local people.  These are your neighbors.  If you care about what they do, then you need to let them know.  Tell your representatives that speak for you what you want them to say and do.

If you want to voluntarily reduce the amount of water you have access to and want to voluntarily raise a tax on yourself, if you want open the door to new types of rules and regulations, then do nothing. 

If you care about the issue, then pick up the phone, stop your neighbor on the street and at the coffee shop, and tell the places you do business with what is at stake.  Even if you do not farm, in these rural communities, your job is dependent on the farmer’s access to water.  The decisions the NRD will make in the near future will have a tremendous impact on this community and who lives here.  Participate in your future and the future of your children.