Nothing Required Again

WaterClaim has repeatedly argued that Nebraska law does not require the NRDs to modify regulations on water uses that were in place prior to May 20, 2003.  Until January 11, 2005, all water policy makers across the State have refused to address this issue.  At a public information meeting hosted by the URNRD, Kenny Owens made the first public comment on the question.

He quoted the key phrase in the law which we post here for easy reference.

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)

(3) The ground water and surface water controls proposed for adoption in the integrated management plan pursuant to subsection (1) of this section shall, when considered together and with any applicable incentive programs, (a) be consistent with the goals and objectives of the plan, (b) be sufficient to ensure that the state will remain in compliance with applicable state and federal laws and with any applicable interstate water compact or decree or other formal state contract or agreement pertaining to surface water or ground water use or supplies, and (c) protect the ground water users whose water wells are dependent on recharge from the river or stream involved and the surface water appropriators on such river or stream from streamflow depletion caused by surface water uses and ground water uses begun after the date the river basin, subbasin, or reach was designated as overappropriated or was preliminarily determined to be fully appropriated in accordance with section 46-713.

Mr. Owens stated to the public that section 3 here supersedes 2d, which we have highlighted, and negates the word "nothing."

We disagree.  We believe that any Integrated Management Plan or Basin Wide Management Plan must be consistent with both paragraphs.  It is possible for the State to comply with 2d while, at the same time, live within the limitations imposed by paragraph 3a and 3b. 

The water policy makers of the State, this includes every NRD board member in the Republican River Basin and every employee of the DNR, either do not understand the law or have chosen to believe that 46-715 (2)d does not mean what it says.  You can read it for yourself and decide what it means. 

Even though we believe the law explicitly states that the NRD can choose to protect groundwater uses in place prior to May 20, 2003, the NRDs have the option of voluntarily creating new restrictions.  There is nothing the public can do about the NRD action except elect different board members.  The NRD has the right to make the reductions.  We want the NRD to continue to have this power.  However, we have the right to elect the people that will represent our needs, not their agenda.

We believe the statements that the State can force the change are inaccurate.  We believe the board members simply want to make the reductions.  The reasons as to why vary from board member to board member.  See Motivation for the reasons why.

Section 3c, however, is a major problem.  In the long run, section 3c will require the termination of most groundwater irrigation.  See Rights of Well Owners and  Right to Water or Cash for a discussion of this issue.