The Nebraska Supreme Court has ruled that surface water is controlled by the Department of Natural Resources and that groundwater is controlled by each of the 23 Natural Resource Districts.

However, the US Supreme Court has ruled that any groundwater that affects stream flow in the Republican River Basin is subject to regulation and must be considered when honoring the Compact with Kansas. 

The Nebraska Legislature passed LB962, which gave the DNR the authority to jointly regulate groundwater wells along with the NRDs. 

In 2005, the DNR expanded the definition of which groundwater wells are subject to joint control to include most of the State's wells.  This effectively voids the Nebraska Supreme Court ruling of 2005 that segregated control. 

Meeting the requirements of the Agreement with Kansas is the easiest of the three problems.  This can be done by permanently shutting down irrigation on approximately 145,000 specific acres in the Republican River Basin.  The Federal Government is paying for about half of this.  However, there is no funding for the other half, and it is not legal for the NRDs to fund the shutdown on their own.  They do not have the necessary taxing authority.  Therefore, the State will be responsible for resolving the problem; and, to date, the State has done little except wring its hands and express hope that Kansas will accept the gestures.

The alternative to shutting down more acres is to move water from the Platte into the Republican Basin.  This can be done for much less money than the shutdown but at present there are more people wanting to shut down irrigation than want to permit a transfer.

Because there is insufficient political will by the policy makers, only token and symbolic activities are being done.  Therefore, at the end of 2007, Nebraska, and probably Colorado, will fail to honor their Agreement with Kansas.  As a result, Kansas has the option of returning to the Supreme Court after exhausting an administrative appeal and then a non-binding arbitration process.  In approximately the year 2009 or 2010, there is a high probability that the Supreme Court will appoint a Special Master to take control of water policy.  This judge will have the authority to order a shutdown of some or all of the irrigation wells in the Republican River Basin.

The politicians will blame the drought and say that if things had only been done years earlier, this problem would not have happened. In reality, it is the policy makers who have set up the mechanism that will force the shut down. Yet, these same people will blame the judge, the drought, and the greedy irrigator. It is us citizens who have elected these people or been too busy to care who was elected. So, in the end, it is the decision of the community to shut off irrigation. The judge will simply be the enforcer of what we have allowed our representatives to decide for us.  

Unless the judge orders a permanent and complete shutdown of all irrigation, he will not solve the aquifer depletion problem or restore the streams to what they used to flow in the 1930s or 1940s.  Obviously, a complete shutdown will destroy the Nebraska economy.

There is only one way to return the streams to pre-development levels within the next 50 years, and that is to import water into the region.  It is usually the same people who want to restore the streams that also want to halt irrigation.  The fact that halting irrigation will not achieve their goal for many decades is not something they want to talk about.

Stopping the aquifer decline in the Upper Republican NRD requires at least 70% of the wells to be shut off. 

The only way to solve the three problems is to shut off most irrigation or import water into the area.  The importation idea is currently politically unacceptable and, yet, the alternative of shutting down most everything is also politically unacceptable.  Most simply want to ignore the problem and hope it goes away. 

Solving just the Kansas requirement is economically doable, but it will leave the core problems in place and leave those trying to solve the stream flow and aquifer problems unsatisfied and feeling like they have been betrayed by corporate farming.

Policy will be decided by either the Legislature or a Federal judge.  If Nebraska wants to control the policy then the Legislature and the Governor will have to find a solution and have the wisdom and courage to implement the answers.  Today, it looks likely that a judge will be making the decision.