Wrongful Prosecution

In early January 2006, we posted an article about why the State excluded conservation practices from the Model.  The article suggested that if conservation practices were included in the Model, the consumptive use would jump.  And, instead of being 104,000 acre feet out of compliance, we would be double or triple that amount.  So, by excluding conservation numbers from the Model, the State permitted irrigation to continue. The premise was based on something Dave Cookson, with the Attorney General’s office, had said.

Since then, we have done much more research on the subject and written another article titled Accurate Accounting.  It boils down to a question:  How does the Model treat consumptive use?   Does the Model ignore a large percentage of consumptive use, or does it reassign the consumptive use from conservation and vegetation growth to groundwater pumping?  

To answer the question, we looked at the total supply, total stream flow, baseflow, and the total consumptive use numbers.  Remember that we are doing this without any assistance from the DNR.  We have repeatedly asked the DNR for this data.  But, as the DNR refuses to release most basic information, we have gone to other public sources and computed what the DNR has hidden. 

The total VWS for the Republican River Basin in 1943 was 478,900 AF.  The Compact defines the term "Virgin Water Supply" to be the water supply within the Basin undepleted by the activities of man.  This includes any water that seeps out of the aquifer into streams via springs but does not include any aquifer water that has not yet seeped out of the aquifer.  The seepage from the aquifer into the stream each year is called “baseflow.”  The USGS publishes a baseflow index for every stream gauge in the nation.  This baseflow index is used by the Modelers and is a key component in determining groundwater irrigation’s responsibility. 

Consumptive Use (CU) is an estimate of how much of the VWS man has intercepted before it reached the stream and instead sent into the atmosphere.  Man can do this by diverting water out of the stream to irrigate a crop or fill a reservoir, by intercepting the water before it gets to the stream, by building a terrace or a retention pond, by planting a tree, or by leaving more residue on a field to prevent erosion.  Or, he can lower the aquifer level or reduce aquifer pressure by pumping and, thus, reducing the amount of water entering the streams via springs.

Each State is allowed a share of the VWS, as set by the Compact of 1943.  The 2002 Settlement Agreement between the three States said the seepage from the aquifer via springs is a part of the Compact and the allocation that each State is allowed.  If groundwater wells reduce the seepage, then that reduction is a charge against the State’s allocation.  Prior to the Settlement Agreement, only the wells in the alluvial basin were considered to affect the amount of water coming out of springs.  After 2002, all groundwater wells, even those 40 miles from the spring, were considered to have an effect on the spring, and that effect is estimated and charged against the State.  The charge is made on the cash-based method of accounting.  The charge is made against the State in the year the water would have been in the stream, not in the year the water was removed from the aquifer.  This action and the charge may be separated by dozens, if not hundreds, of years.

VWS from runoff = X

VWS from aquifer seepage (baseflow) = Y

X + Y = total VWS

Groundwater pumping has lowered the water table in parts of the Basin.  In the areas where it has done so, it has caused some of the springs to yield less water or to go dry.  This reduces Y.   After 2002, this reduction in Y by wells outside of the alluvial area became a part of the formula for measuring compliance with the Compact. 

A computer simulation (the Model) was created to measure this effect.  The Model must know X and Y in order to work. 

We can calculate Y (baseflow) based on the data from the USGS and the public Settlement Agreement data. 

Predevelopment baseflow               282,000 AF

1985-1994 baseflow                        179,000 AF

Decrease in baseflow basinwide      58,000 AF

If all of the baseflow decline is due to groundwater pumping (which it is not), then total consumptive use caused by groundwater pumping is about 58,000 AF.  However, the Model attributes 248,000 AF to groundwater.

This means the Model is overstating the effect of groundwater pumping on the stream by over 4 times what it should.

The DNR has chosen to shift the responsibility for consumptive uses caused by conservation and vegetation growth to groundwater irrigation. 

   Data is for 2004

According to multiple University scientists -- including Koelliker, Szilagyi, and Goeke -- conservation practices are the primary cause of the reduction in stream flow.  However, the Model intentionally chooses to ignore these.  The Model also assumes that there has been no change in the amount of water used by trees since 1950, even though there has been a massive increase in the number of trees and the size of the trees throughout the Basin.

The DNR publicly admits that it has chosen to ignore the primary cause of the stream flow depletion.  Based on an analysis of the data, we have demonstrated that not only did the Model makers ignore the primary cause of the stream flow depletion, but they also chose to assign the responsibility to an innocent party.  If this were a criminal case, it would be as if the prosecutor knowingly chose to prosecute an innocent party and let the guilty go free because the prosecutor liked the guilty person and did not like the one they chose to condemn. 

This is a quote from the May 7, 2004 High Plains Journal.   Ann Bleed is currently the director of the Nebraska DNR and one of the people that helped determine how the Model works:

“For Nebraska's part, the state fought not to include the effects of conservation activities to the model, Bleed said.

"From Nebraska's perspective and I think I'm speaking for both Colorado and Kansas here, our concern was if they were included in the compact, and we got a water-short year like this past year, then there would be perhaps a necessity to start regulating conservation activities to stay in compliance with the compact," she said.

"That is something none of the states wanted to do. We didn't want to get into the business of telling farmers they couldn't use minimum-till or they couldn't put in terraces. That's not part of the consumptive use calculation for the compact."

What is left unsaid, but is a natural consequence, is that irrigation would be sacrificed so that conservation practices could remain untouched.