What must the NRDs do, according to Nebraska law.

There has been a great deal of discussion regarding the effects LB 962 has on the obligations of the NRD when dealing with water allocations. 

The DNR controls surface water and the NRDs control groundwater.  That has not changed with the passage of LB 962.  If there is a stream that the DNR has designated as fully or over appropriated, then the law now requires the DNR and NRD to create an Integrated Management Plan. Many of the NRDs are now required to create such plans.

Nebraska Statute 46-715 (2)(d), states:

“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.”

This clause deals with streams that are fully and over appropriated.  Section 715 (2)(d) is applicable to both. 

If the NRD and DNR cannot agree on the details of Integrated Management Plan, then the issue is referred to the Interrelated Water Review Board.  This Review Board, in its decisions, is also subject to 46-715(2)(d).  The following is taken from 46-719 (2)(c) and describes the limit placed on the IWRB. 

“An integrated management plan shall be consistent with subsection (2) of section 46-715, and the surface water and ground water controls and any applicable incentive programs adopted as part of that plan shall be consistent with subsection (3)of section 46-715.”

These sections of the law provide the NRD with the authority to make policy.  If these sections of the law are removed, then the authority to make groundwater policy is transferred to the IWRB. 

Even if your NRD does not have a fully or over-appropriated stream within your district, it is important that you help retain the authority to manage groundwater uses in the hands of the NRD.  Any attempt to divide the NRDs and pit them against each other will result in a loss of authority by all NRDs. The DNR has stated that 46-715 (2)(d) is an obstacle to their ability to cause policy they believe is necessary and that they believe the legislature will correct the problem.  We believe it is important that all NRDs resist any attempt to remove their control over the groundwater.

If this section of the law is removed, then the NRDs lose much of their reason for existing.  They become instruments of the DNR.   They take the political heat but have little influence on policy.

Statute 46-715(2)(d) allows the NRD to voluntarily make changes in existing water usages, but it does not require them.  This allows the NRD the flexibility to choose what is best for the NRD while still working with the DNR in resolving various issues.  We believe it is very important that the NRD make note of this section of the law and make sure their legislator understands the issue and its importance to the NRDs. 

If 46-715(2)(d) is removed, then the Interrelated Water Review Board takes on a very critical role. Even if that clause is protected, it is still important that the NRDs take action now to assure they are fairly represented on the Natural Resource Commission.  The new role given to the Commission by LB962 should cause the NRDs to care a great deal about who represents them on the Commission.

Interrelated Water Review Board

The Interrelated Water Review Board is appointed by the Governor and has five members.  He appoints two of his choosing.  He chooses three of the five members that sit on this board from the six names provided by the Natural Resource Commission. 

46-719 (1) (a) and (b) “The Governor shall appoint and convene the board within forty-five days of being notified of the need to resolve a dispute.  The board shall be chaired by the Governor or his or her designee, which designee shall be knowledgeable concerning surface water and ground water issues.  The Governor shall appoint one additional member of his or her choosing and shall appoint the other three members of the board from a list of no fewer than six nominees provided by the Nebraska Natural Resources Commission within twenty days after request by the Governor for a list of nominees.

  (b) Not more than two members of the board shall reside in the geographic area involved in the dispute.  A person is not eligible for membership on the board if the decisions to be made by the board would or could cause financial benefit or detriment to the person, a member of his or her immediate family, or a business with which the person is associated, unless such benefit or detriment is indistinguishable from the effects of such action on the public generally or a broad segment of the public.  The board shall be subject to the Open Meetings Act.”

The Natural Resource Commission is made up of 16 members - one for each river basin in Nebraska and 3 appointed by the governor.  The three governor appointees represent municipalities, surface irrigators, and groundwater irrigators. 

The Natural Resource Commission is a functioning body within the Department of Natural Resources.  The 13 members representing the river basins are chosen by the board members of the NRDs.  NRC members serve four-year terms.  Their primary purpose is to distribute various funds such as the Small Watersheds Flood Control Fund, the Nebraska Resources Development Fund, the Nebraska Soil and Water Conservation Fund, the Water Well Decommission Fund and the Natural Resources Water Quality Fund; and, now, to nominate six people to sit on the IWRB.  The choice of judge and jury is very important to the outcome of any dispute between an NRD and DNR.

It now matters who sits on the NRC, as it has now been given the authority to select the candidates that can be chosen by the Governor to sit on the IWRB.

Because the IWRB has the potential to act as judge selectors for disputes between the DNR and the NRDs, it is important that all NRDs are aware of who sits on the NRC and believes these individuals will work to protect the interests of the NRDs. 

It is very possible that the legislature will expand the jurisdiction of the IWRB to deal with other issues.  Because the NRC board serves four-year terms, it is important that you select people that can protect you from future threats. 

The NRD Boards should choose carefully who represents their river basin.  For example, Wayne Madsen, the Governor’s appointee to represent ground water users, publicly says that he believes ground water users use too much water and should use much less.  This does not represent the views of the vast majority of people that he is supposed to represent.  Do you know what your representative thinks?  Is it in tune with what most of your Board wants?  If there is ever a dispute between you and the DNR, do you trust your representative to choose judges that will be fair to your needs?

Half of the commission members are up for reappointment by your NRD manager in January of 2005. 

To summarize, it is obvious that the Water Task Force, in shaping LB 962, intended to have the NRDs remain in control of groundwater use.  This is evidenced by 46-715, which protects existing uses of water from additional regulations and the fact that who sits on the Natural Resource Commission is controlled by the NRDs and not the DNR, even though the Natural Resource Commission is a sub-division of the DNR and uses DNR staff.  Since the Interrelated Water Review Board has three out of its five members nominated by the NRDs, then the Interrelated Water Review Board decisions should be weighted in favor of the NRDs. 

Jim Cook of the DNR contends that the Water Task Force did not intend to allow existing water uses to remain under the control of the NRD but this control should be shifted to the IWRB.  We contend that existing uses are and should remain in the control of the NRD.  It is a question of who controls the existing ground water uses.  Is it the NRDs (as it is now), or will this control be transferred to the IWRB or the DNR?  Today, you have that control.  There are some who will attempt to transfer that away from you.  This letter is to encourage you to be aware of the threat and to protect your authority.