WaterClaim

Jasper Fanning says that the water transfers proposed by WaterClaim may be politically unacceptable. But what is the alternative? The other option is telling landowners they have to shut off irrigation wells. That, too, may be politically unacceptable. So, what happens when all of the options are unacceptable? Politicians wait and let someone else make the decision.

Even the DNR admits that shutting off all of the irrigation wells will not solve the problem. That means proposals to reduce usage by 5% or 15% won't solve the problem either. So, why suggest the symbolic gestures of reduction? They hope that such sacrifices make it look like we are trying. The politicians have decided that, since moving water or shutting off water will offend too many people, they will simply put on a good show and hope that Kansas has mercy.

You will notice the DNR has gone from saying, "Nebraska will not fail; it is too expensive" to "the drought makes it very difficult to comply, and Kansas appreciates our efforts."

However, Kansas says something a bit different than what the Nebraska politicians wish they would. Kansas says it appreciates Nebraska's efforts to date, but that it expects Nebraska to fully comply and honor the Agreement. In 2005, Kansas received $34 million from Colorado in settlement over a similar river dispute. Kansas has said it will use most of that money to pay the legal bills in other water disputes. The only other
ongoing water dispute is with Nebraska.

In other words, politicians hate to make controversial decisions. If the public is divided on an issue, you can usually count on a politician to do nothing while saying they are working hard to find a solution. In effect, they put off the decision until someone forces the issue.

In this case, that means a Federal judge appointed by the US Supreme Court. That will probably happen in 2009 or 2010. At that point in time, a judge will take control of Nebraska water policy because the DNR and the NRDs failed to resolve the issue. The judge will get to be the bad guy while all of the politicians that did nothing will point the finger at the judge.

One person from somewhere outside of Nebraska with perhaps no familiarity with Nebraska water issues will make the hard decisions. He will be the one who orders the shutdown of irrigation wells. Do you want to bet your net worth on which wells he chooses and who, if anyone, he will decide should pay the bill? Our current NRD and the State apparently believe this is more politically acceptable than importing water into the Basin. If we want politicians to act, the politician has to believe they will lose the next election if they don’t act.

Posted by Steve Smith at 07:01 PM | Permalink | Comments (0)

On June 16, the Colorado Division of Wildlife appealed a Colorado Groundwater Commission ruling. The CDOW joined the Pioneer and Laird Irrigation Districts in seeking a reduction of water use by groundwater irrigators. This adds State dollars and resources to the lawsuit. CDOW is similar to the Nebraska Game and Parks and CGC is similar to the Nebraska Deparment of Natural Resources.

The CDOW asks the Court to order the CGC to declare that all groundwater that contributes to streamflow is a is a tributary of the stream and therefore subject to surface water rules. What is not said by the CDOW is what percentage of the groundwater is considered a contributor to the streamflow but we know that the Nebraska Department of Natural Resources, which worked out the groundwater accounting procedures on the Republican River in cooperation with Kansas and Colorado, believes that 100% of all groundwater is a part of the streamflow.

The CDOW repeatedly references the Republican River Compact Settlement Agreement and obviously intends to use the accounting procedures established by the three States as its basis. The CDOW is demanding that groundwater be treated as a junior surface water rights holder and therefore subject to first in time, first in right law.

If the CDOW is successful in its arguement, then it could result in the shut down of all groundwater irrigation in the Colorado portion of the Republican River Basin.

You can read the filing made by the CDOW by clicking on this link.

Colorado Division of Wildlife action in Colorado District Court

The Nebraska Supreme Court recently heard similar arguments. Suits against the Nebraska Department of Natural Resources demanded that the NDNR shut down irrigation that affected streamflow. The Nebraska Supreme Court returned the question to the District Court with the explicit statement that even if groundwater irrigators have dried up the stream that the District Court cannot order the shutdown of the groundwater irrigation wells as a solution.

Posted by Steve Smith at 02:08 PM | Permalink | Comments (0)

The DNR announced today that Nebraska is over its 2005 Republican River allocation by 42,000 acre feet and that the accumulated overage for this accounting period is 104,000 acre feet. What the DNR does not report is how many acre feet credit Nebraska expects to receive for all of the surface water purchases made in 2006 or what benefits are expected from the reduced allocations farmers have been given. The DNR says that the drought is the primary cause of the greatest overage in Nebraska history. Yet, the Republican River Basin received 98% of normal precipitation in 2005. So far, 2006 is dryer than 2002, which was the driest year in history.

Year Precip % of Normal
1999 104%
2000 87%
2001 104%
2002 63%
2003 85%
2004 106%
2005 98%

The “drought” does not cause the problem in the year it happens. It has a delayed effect. To make the point, look at the following graph. Look at the precipitation line and use it to predict what the allocation line will do the following year. According to the DNR, the allocation line is going down because the precipitation line is going down.

Allocation vs Preciptation

In reality, the lack of precipitation will cause a lower allocation in the future. A drop of rain falling away from the river or a well pumping away from the river does not cause a change in stream flow in the year it happens. How it affects the river is dependent on geology, conservation practices, distance from river, time of year it falls, and a number of other factors.

Because of the delayed effect precipitation and pumping have, it is possible for the DNR to make highly accurate predictions of what future overages will be, even if we don’t know how much rain we will get.

Note that Nebraska is 104,000 acre feet over its allocation. We have an unknown credit for the surface water purchases. We still have 2006 and 2007 overages that have to be added in. It is possible that the 2006 and 2007 numbers will be positive, but we have been averaging 35,000 acre feet over for the last three years. So, we use that average for budgeting purposes.

Year Overage
2003 (25,420)
2004 (36,640)
2005 (42,029)
2006 (35,000)
2007 (35,000)
------------
Total (174,089)
3 Yr Avg (34,696)

Nebraska will receive credits in acre feet of approximately:

Year Credit Description
2006 1,500 CREP/EQIP
2007 2,500 CREP/EQIP
2006 35,000 Surface water purchase
--------
Total 39,000

174,000 in overages minus 39,000 in credits equals 135,000 in net overage at the end of the deadline.

Shutting off all 1,200,000 irrigated acres in the Basin for one year would give Nebraska about 23,000 acre feet of credit in the first year. If the wells were to stay off a second year, Nebraska would receive another 45,000 in credits. As can be seen, the wells have to stay off for several years to eliminate the existing overages. About 98% of the credits come from the wells within 2 miles of the stream. So, one could get nearly the same benefits by turning off just the wells close to the stream. True, these landowners would feel discriminated against, but the cost savings are huge. Yet, there are 334,000 acres close to the streams. Each of those acres provides about $250 of net economic activity to the local community. Shutting off only those acres would remove about $83 million dollars a year from the Republican River Basin, with half of that being in the Lower Republican NRD.

To our knowledge, the State has no plans on how to deal with this problem. The State will not talk about how it will resolve the issue of the decade. Many hope the problem will just go away. But, the problem is much bigger than the drought. Even if it starts to rain, this problem will persist. Irrigation is under assault. In Colorado, 400 irrigation wells were ordered turned off this spring, even though seed was already in the ground. There does not appear to be any plans to compensate the losers. Two surface irrigation districts in Northeast Colorado have sued, asking Colorado courts to force the shutdown of all irrigation until the streams return to normal. Even if the wells are turned off, the streams will not return to normal for several hundred years. The Colorado Division of Wildlife has also filed suit, asking the Colorado Courts to force the shutdown of all irrigation wells until the streams return to normal. Surface irrigators, ranchers, environmentalists, and conservationists are demanding that there be less or no irrigation. Some of these groups are willing to go to court to force the issue.

The Agreement that Nebraska made with Kansas requires Nebraska to stop Republican River stream flow declines and hold it at the 2002 level. Because of the Lag Effect (the delayed results of past pumping), Nebraska will be forced to shut off more irrigated acres each year until most irrigation ceases in the Basin. This is on top of the current overage problem.

At present, most are in denial that irrigation in Nebraska is at serious risk. Most trust their government to protect them and provide a solution. Most believe that the corn produced is too important for the government to allow a shutdown to happen. The smart/rich people wouldn’t be investing millions into ethanol plants if irrigation was truly at risk, right? Some farmers believe what they are doing is okay; it is just the farmers in the other District or other Basin who are giving everyone a bad name. If the other guy would just behave responsibly, the problems would go away. Many farmers and rural communities refuse to recognize that their way of life will probably end sooner than they realize. It isn’t that we are running out of water; instead our society is choosing to stop using it in the same way we have over the last 60 years. Such a decision will change the demographics and economy of much of western Nebraska.

WaterClaim is the only group to have a suggestion on the table for how to solve the problem. The State and NRDs refuse to make any public proposals on how to prevent the economic destruction of the region. While some claim the WaterClaim ideas are politically unacceptable, the idea of shutting off 300,000 to 1.2 million acres is also politically unacceptable. Ask yourself. What would be a politically acceptable solution that might even come close to solving the problem.

Posted by Steve Smith at 01:01 PM | Permalink | Comments (0)

Since the DNR release is very wordy, I will summarize the important parts of what they say.

Nebraska used 42,029 AF more than is 2005 Republican River Basin allocation. This puts the accumulated overage at 104,089. The drought is the primary cause of the problem.

The Nebraska Department of Natural Resources (DNR) has completed its preliminary calculations for the Republican River Compact in 2005. These DNR calculations show that while the continuing conservation efforts by farmers, irrigation districts and natural resource districts the state are making a positive impact, years of ongoing drought continue to strain the Nebraska allocation of water for consumptive use from the Compact.

Although Nebraska's consumptive use of water has stabilized and even decreased over the past three years, the amount of water allocated for use by Nebraska decreased each year due to decreased stream flows. The amount of water allocated to Nebraska in 2005 was the lowest in the history of the multi-state Compact.

Signed by the states of Colorado, Kansas and Nebraska in 1943, the Compact includes formulas allocating a certain percentage of the basin's water supply to each state. Water supplies vary from year to year, depending on weather conditions. The amount allocated to Nebraska varies from a low of around 200,000 acre-feet to a high of more than 400,000 acre-feet. The Compact regularly restricts each state's use of water to a five-year running-average allocation. Compact accounting for the five-year running average began in 2003, so the first year check for compact compliance will be based on allocations and consumptive uses for the years from 2003 to 2007, most of which have been dry.

In water-short years the states must restrict their consumptive usage to no more than a two-year average allocation. The U.S. Bureau of Reclamation makes the formal declaration of water-short years on June 30 annually, provided the irrigation supply from Harlan County Lake is less than 119,000 acre-feet. Due to ongoing drought, 2005 was declared a water-short year. The latest projected irrigation supply in the lake for 2006 is only 15,700 acre-feet, which indicates that 2006 is also likely to be declared a water-short year. Thus it is expected that Kansas and Nebraska will be restricted once again to two-year average allocations for the years 2005 and 2006.

Because the allocations depend on the amount of water available for the year, calculations to determine the allocations and consumptive use cannot be done until one year after the actual water use. Although the three compact states are still developing the final numbers for the Republican River Compact Administration, preliminary estimates indicate that the allocated water supply for Nebraska for 2005 was 199,420 acre-feet, the consumptive use of water was 253,540 acre-feet, and the credit Nebraska receives from water imported from the Platte River basin is 12,091 acre-feet. That leaves the shortfall between Nebraska’s allocated supply and the consumptive use at 42,029 acre-feet. Combining these numbers with the numbers from 2003 and 2004 indicates that Nebraska's total allocation, with the credit for imported water for 2003-2005, was 664,881 acre-feet, and the state's total consumptive use was 768,970 acre-feet for the same period. Based on those three years of data, Nebraska's consumptive use appears to have been a total of 104,089 acre-feet over its allocation

The impact of the drought is clearly evident in these numbers, as are the concerted and cooperative efforts of Natural Resource Districts and farmers to conserve water. Although Nebraska's consumptive use on average decreased by 4,620 acre-feet per year between 2003 and 2005 the credit from imported water supply increased by an average of 1,155 acre-feet per year. The amount of water allocated to Nebraska decreased by an average of 12,924 acre-feet per year, due in large part to lower-than-normal precipitation

Posted by Steve Smith at 12:53 PM | Permalink | Comments (0)

At the end of 2007, Nebraska will fail to honor the agreement it has made with Kansas regarding Republican River water.   The NRDs do not have the legal authority to solve the problem, nor are they the primary cause of the problem.  Our question is this – how does Nebraska plan to protect itself economically when it fails to honor the agreement?

The State does not have any public document that lays out how it will comply or what it will do it if fails to comply.  Water policy officials who are responsible for Nebraska staying in compliance refuse to answer questions.  The questions we ask and cannot get answers to are:

1. How will Nebraska become compliant with the agreement made with Kansas?
2. If Nebraska fails to comply, what will happen?
3. If irrigation wells are turned off, how many will need to be shut down?
4. Which wells need to be turned off to cause the least economic damage?
5. Will there be compensation to the landowner who loses his access to water?
6. Will there be any type of compensation for businesses that lose their irrigation customers?

Before Katrina hit the Gulf coast, the officials in charge knew the levies would not hold if a strong enough hurricane hit.  The community chose to give certain individuals the responsibility for creating an evacuation plan and implementing it, if needed.  They failed.

Nebraska knows an economic storm is coming.  Nebraska knows that what has been done so far is inadequate.  Most Nebraskans trust their government to find a solution so that life can continue as it always has.  But, when the people in charge will not reveal how they will deal with the problem, it usually means that they don’t have a plan or that they know the plan will fail. 

The public that is trusting and relying on their elected representatives deserve to know the threat, the plan on how to deal with the threat, and what they must do to help, if anything.  

Posted by Steve Smith at 08:27 AM | Permalink | Comments (0)

The Republican River Basin has two options -- begin shutting down irrigation or importing water. WaterClaim has supported two different transfers. One is a small short term transfer that moves water from the Platte to the Republican Basin just west of Holdrege. This permits the Republican River Basin to continue to irrigate while staying in compliance with the agreement made with Kansas. This transfer, however, does not solve the basic problem of declining streamflows and a declining aquifer in the Upper Republican NRD.

The second transfer supported by WaterClaim is a move of water from the Sandhills into the Upper Republican NRD. This transfer solves most of Nebraska's water problems. It captures and uses water that is currently left to evaporate. It helps refill and keep Lake McConaughy full. It eliminates the over-appropriated status of the Platte River. It meets the Endangered Species Act requirements. It recharges the aquifer in the Republican River Basin. It restores stream flows on the Republican River. It satisfies the agreement with Kansas. It creates a large number of jobs, and keeps the economy of western Nebraska alive.

However, both of these transfers are opposed by most water policy makers. A variety of reasons are given, but the basic reason for the opposition is that the opponents believe it is a bad idea to modify nature. There is also an economic reason. Individuals along the Platte do not want any competition for the water they are currently using.
If water is not imported into the Republican River Basin, then the agreement made with Kansas will require the immediate shutdown of about 145,000 acres, assuming all of those acres come from within one mile of the streams. Because of the Lag Effect, additional acres will be shut down each year. According to the DNR, there must be a 1% reduction in usage each year. After 50 years, that means more than 60% of the irrigation will be gone. This would be an immediate shutdown of 10% of the land and then an additional 1% reduction each year thereafter.

Note that the 145,000 acre number is a WaterClaim estimate. The DNR will undoubtedly dispute this number yet will also refuse to produce an estimate of its own. The DNR is fond of calling our numbers misleading; but, the DNR will not make any estimates or official release of any numbers that the policy makers can rely on when making decisions. The reason the DNR has stopped making any statements about what is required is because its past statements have been very wrong. The DNR told the public in 2004 that a reduction in use by 5% and a shutdown of 50,000 acres would be enough to solve the problem with Kansas. In 2005, the DNR admitted that even shutting off all wells would not bring Nebraska into compliance. Now, the DNR will not make any estimates.

For Nebraska to stay in compliance, 145,000 specific acres must be denied access to water. Even with this number of acres shut off, Nebraska will still fail to meet the 2007 deadline; but it will be able to meet future requirements after paying damages for the 2007 failure. This damage payment will get a lot of press and will fuel the demand for a shutdown of irrigated acres. Many will argue that the damage payment is a reason for irrigation to be shut off without compensation, strengthening the hands of those wanting to put more restrictions on water use across the State, even in areas that are not affected by the problems in the Republican.

How does the shutdown happen? If you are the current user of the water, how are you persuaded to stop using the water when your neighbor a mile a way can continue? The State must either use eminent domain type of rules or pay above-market rates to persuade all of the necessary acres to shut off. The eminent domain type rules are called Ground Water Management Plans. It allows the NRD to designate certain areas as subject to different rules. The water allocation can be set at 2 inches for this ground and 10 inches for other ground. Under this scenario, there is no compensation for the landowner.

The other way is to pay the landowner cash. CREP/EQIP type programs are currently trying to do this. The landowner is paid $125 an acre and, in exchange, stops using water for 10 or 15 years. So far, this is not enough money to persuade enough people to participate in the programs that are available. So, for a voluntary program to work, the amount paid per acre needs to be increased or the landowner must be forced to accept this amount.
To date, the existing water policy makers have been unwilling to pay to retire the necessary acres or to permit an importation of water. Because the existing policy makers are unwilling to do what must be done, it is likely that a Federal judge will make the decision for them in the year 2009 or 2010. Assuming a transfer mechanism has not been setup, the only option available to a judge will be the shutting down of irrigation wells. If no Groundwater Management Plan area has been created that separates the land near the streams from all of the rest of the land, then the judge will have limited options. The questions then become: which wells will be shut off, and what, if any, compensation is paid?

Mike Mosel, Dean Large and Jerry Kuenning (each on the Board of Directors of the Upper Republican NRD) believe that everyone in the district should be treated the same. "It is a matter of fairness." This means they prefer that all wells be restricted equally, even if they produce different results. They argue that the wells in Perkins County should be treated the same way as the wells next to the stream, even though the Perkins County wells have had almost no measurable effect on the Republican River after 40 years of pumping. These individuals represent the will of the community. As long as they remain in office, they speak for the people, and it is likely the judge will accept that the people want what their elected representatives say they do and has no reason to think otherwise. Shutdowns of irrigation are likely as long as the people living in the Republican River Basin have elected representatives who prefer this option.

Posted by Steve Smith at 07:06 AM | Permalink | Comments (0)

WaterClaim has completed a detailed review of the Platte River stream gage at Grand Island. This consisted of looking at over 25,000 daily gage entries. Note, we used all publicly available data. Please see the complete report in PDF format at:

Platte River Report

Highlighted findings:

1. Total stream flow during the most recent seventeen years is nearly 50% more than the flow of the seventeen years between 1935-1952.
2. The dam has eliminated 90% of the dry stream days. Prior to the dam, the stream at Grand Island was dry 17% of the time. During the most recent seventeen years, the stream has only been dry 2% of the time.
3. There have been more floods/stream surge days in the most recent seventeen years as compared to the seventeen pre-dam years.

Posted by Steve Smith at 07:02 AM | Permalink | Comments (0)

The US Fish and Wildlife Service has given its approval of a plan to manage water on the Platte River.  The plan is called the Platte River Recovery Implementation Program (PRRIP) and is designed to put more water into the river and change when the river sees its flows.  The Environmentalists want more water in the River in late Spring and in October.   The plan can be found at http://www.platteriver.org/

The next step is for Nebraska to review the plan.  If the Governor finds it acceptable, he will sign the agreement, committing Nebraska to making the reductions. 

What happens if the PRRIP (Cooperative Agreement) is not signed?

Then all water related activities with a federal nexus in Nebraska, Colorado, and Wyoming become subject to the review by project by the Fish and Wildlife on an individual project basis for compatibility with the Endangered Species Act.

This includes:

1. Kingsley Dam,
2. The irrigation projects in western Nebraska that get their irrigation water from Bureau of Reclamation reservoirs in Wyoming,
3. All diversions from the Platte,
4. Potentially groundwater irrigation wells (an Omaha judge has ruled that such wells, to the extent they affect the river are subject to review),
5. The hydro  projects operated by NPPD and CNPPID, which includes water for irrigation in central Nebraska municipal wells, farm programs, etc that get federal funding.

The Fish and Wildlife Service does not have the resources to do these reviews in a timely fashion.

No one knows what would happen or how much water and land would be required of water related activities.

Risk of lawsuits from various environmental groups seeking injunctions on irrigation and power - hence much of the irrigation and hydro power in Nebraska is at risk to some degree.

If the agreement is signed:

Then we know what we are dealing with.

Existing irrigation (surface water and groundwater) and power uses are licensed and considered acceptable by Fish and Wildlife Service for 12 years

What we give up with the agreement

All consumptive use on the Platte that effects endangered species target flows that have come into existence since 1997 must be offset

Phase 1 will require no cash from Nebraska.

1. Because NPPD has purchased and developed the Cottonwood Ranch
2. Because Nebraska receives credit for the environmental account in McConaughy.

10,000 acres are set aside on the Platte for endangered species during this first increment.  The Cottonwood Ranch counts for 2650 acres.

Shortages to fish and wildlife service target flows must be reduced by 150,000 acre feet. The environmental account on McConaughy, a project on the Pathfinder dam and a Colorado project called Tamerask count for 80,000 acre feet of the required 150,000.

The remaining 70,000 AF will come from water projects paid for by the program
No new consumptive use on the Platte in Nebraska, Colorado or Wyoming unless the impacts to endangered species target flows are offset.  They can be offset by

1.      An equal reduction in consumptive use elsewhere on the Platte

2.      Retimed flows,

3.      Storage projects

4.      Shutdown of irrigated acres

Cost of the agreement is estimated at $317 million.

$130 million are in kind contributions from the three states (land and water)

$187 million in cash

$157 million in Federal dollars

$30 million State dollars

$24 million from Colorado

$6 million from Wyoming

Posted by Steve Smith at 01:36 PM | Permalink | Comments (0)

Alcorn Energy of Troy Michigan has announced they will build Nebraska's largest ethanol plant exactly in the area that the Republican River Basin would like to source water for a transfer. This is between Bertrand and Loomis on highway 23. The effect of the ethanol plant will be to increase the value of the land in the immediate area and will increase the confidence of the landowners that there will be more demand for their corn. As a result, the area landowner will want substantially more money for their water than they would have wanted before the ethanol plant was announced. Even if someone can pay more money than what the corn sold to the plant will produce, the confidence in the economy of the area will substantially inflate the market. This will raise the cost for any transfer project and also raise the cost to the PRRIP program which is funded by the Federal Government, Colorado, and Wyoming for the purpose of putting more water into the Platte River through irrigation shutdown programs. In other words, the demand for water is growing and therefore the price of access to water is going up.

Posted by Steve Smith at 11:19 AM | Permalink | Comments (0)

In 2004, the Department of Natural Resources (DNR) held a series of public meetings telling the audience that Nebraska needed to reduce pumping in the Republican River Basin by a simulated 40,000 acre feet of water each year.

It also told the audience that an irrigated acre within one mile of the stream, if shut off, would result in 0.3
acre feet more water being in the stream.  Quick math would show that this means 160,000 acres of irrigated land near the stream must be shut off to comply.

Since then, Nebraska has used about 104,000 acre feet more than it is allowed.  This overage must be eliminated by the end of 2007 or Nebraska is subject to legal action by Kansas, which already has a judgment against Nebraska.

To deal with this problem, Nebraska has participated in land retirement programs that have shutdown about 45,000 irrigated acres via CREP and EQIP.

It has also purchased all available surface water from the Nebraska irrigation districts for the 2006 irrigation season. The combined efforts will still leave Nebraska over its allocation at the 2007 deadline.  The DNR has not released the benefit in acre feet that it expects to receive from the 2006 surface water purchase.

Table 1 - Compliance

Even if the surface water purchase is worth 35,000 acre feet and CREP/EQIP benefit Nebraska 10,000 by the end of 2007, Nebraska will still be over its allocation by a significant amount.

Note that shutting off all 12,000 irrigation wells in the Basin for two years would not result in enough savings to erase the overage.

At the end of 2007, Kansas has the option of complaining to the Republican River Compact Administration.  This is a three member board made up of the three water department heads (Kansas, Colorado, and Nebraska). Kansas can make this complaint in the summer of 2008, once the official 2003 through 2007 numbers are released. Assuming Kansas is not satisfied with the results of this complaint, it can ask for non-binding arbitration. (Note that Nebraska officials are putting a very large amount of hope in the idea that Kansas will have mercy.)

That could be resolved during late 2008 or early 2009. If one of the parties is not satisfied with the results of the arbitration, then they can go to the US Supreme Court. If it is Kansas that goes to the Supreme Court, then a Special Master could be appointed in 2009 or 2010 and this individual would then control the economic fate of the Republican River Basin.  If Kansas is happy with the results of the arbitration, then it is likely that Nebraska and Colorado will not be. However, their chances of a successful appeal to the Supreme Court are much less likely. Therefore, the decisions of the arbitrators are important.

The non-binding arbitration could result in an order to Nebraska and Colorado to shut down all irrigation wells until the two states are in compliance. This would take about three years of no irrigation. An order to shut down all wells within 1 mile or 2.5 miles would also result in compliance in about three years. In other words, shutting off wells more than 2.5 miles from the stream have little effect for 15 years; and if fast compliance is required, it doesn't accomplish much in the short term to shut them off.

Assuming compliance is achieved through the ordered shutdown of irrigation, then the questions become: how many acres have to be shut off and who, if anyone, pays for their shutdown?

The Nebraska Department of Natural Resources refuses to release basic information on this subject. It will not report how many acres are directly connected to the stream, how many are within 1 mile, how many are between 1 and 2 miles and how many are between 2 and 2.5 miles.  It will not release the benefit to the stream of shutting off combinations of these wells.

However, WaterClaim has been able to obtain most of the information via open records requests or going to the people who provide the DNR with the information.

Table 2 - Acres by Type and Location

There are no official numbers. These are numbers we have found from various sources. The fact that they are not quite logical doesn't mean we got the numbers wrong; it simply means the DNR does not have an official set of numbers. The official numbers either do not exist or are classified. The benefit in acre feet are approximations based off of DNR graphs.

Because key data is hidden, it means that the NRDs are acting in the dark. It also means that only the State has the information necessary to make decisions. However, the numbers are close enough to being correct that we can make some reasonable estimates. The least expensive option to the State is to lease or purchase all irrigated acres that are called stream cell acres. There are 145,201 of these. If Quick Response acres or CREP eligible acres are also retired, then more acres have to be shut down to get the desired result. Shutting off these wells permanently will probably keep Nebraska in compliance for at least 17 years.

The Federal Government is paying to retire 70,000 CREP acres. About half of those acres have been enrolled. Rather than increasing the incentive for people to enroll these acres, the State is planning to expand the eligible area -- which results in less benefit per acre.

If one works on the assumption that the 70,000 acres eligible for CREP will be enrolled, then at least another 75,000 acres have to be permanently turned off. The cost of buying 75,000 acres would be $1,000 an acre if just the water is purchased but the land is left in possession of the current land owner. That would be a $75 million cost, plus administrative costs of forcing the sale.

If the land is leased on an annual basis, then the average market rate is $130 an acre, and this increases at an average of $2 an acre each year. Some land currently rents for more. Sugar Beet and Potato leases are worth about $200 an acre. We use an average of $150 a year over a 17-year time frame. This would cost someone a little over $11 million a year.

Forced land retirement will not provide any compensation to the businesses that rely on irrigation. Most of the irrigated stream cell acres are in the Lower Republican NRD and, hence, there would be a much greater impact there on the business community. About 30% of the LRNRD is stream cell, and some communities will lose all of their irrigated acres and, therefore, most of their ag businesses.

This forced shut down of stream cell acres will not restore the Republican River to its pre-development flows nor stop the aquifer decline in the Upper Republican NRD.

No one will want to pay the $75 million or the $11 million a year or any compensation to the businesses affected. In fact, it has been suggested by a noted Lincoln water law specialist that no compensation is owed to the landowners that are denied access to water. David Aikens argues that since the water is owned by the State, it can decide to use that water for things other than irrigating crops. The landowner only has access to the water as long as the State wants the water to be used that way.

If the State chose to shut down acres without compensation, the State would be sued. If the Court decides that the landowner is due compensation, then the bill will be paid by the State. If the Court decides that no or limited compensation is due the landowner, then there will be a large number of communities that fail and individuals who go broke.

Even if the landowners win the lawsuits about compensation, it will take a long time for the Courts to make this ruling; and if the wells are shut off during this time, it will result in irreversible individual bankruptcies.

Either way, there will be a large bill to pay for compliance. The cost of compliance is much less if water is transferred into the Republican River Basin from the Platte River Basin. However, so far, the sitting policy makers prefer to shut off irrigated acres rather than increase water supply.

Many of the decision makers will take office January 2007. This group can choose to:

1. Take only symbolic actions, which will result in a judge making the decision for everyone in 2009 or 2010.
   
2. Set up a water importation plan that will give the judge an alternative to shutting down
   
3. Persuade the owners of about 145,000 acres to shut off their irrigation wells.
   
4. Hope and pray for mercy from Kansas by persuading Kansas to forfeit some of the wins it obtained from the Supreme Court.

Posted by Steve Smith at 03:17 PM | Permalink | Comments (0)

In reality, there are three problems:

1. The Republican River and its tributaries have substantially less water in them now than they used to.
2. The aquifer in the Upper Republican NRD and two other counties is going down.
3. Nebraska and Colorado made an agreement with Kansas that requires Nebraska and Colorado to reduce the amount of water each uses.

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.

Posted by Steve Smith at 11:54 PM | Permalink | Comments (0)

WaterClaim came into existence in May 2004. It was formed for the purpose of researching water issues and providing information to our members and the public. As the amount of information has grown and the need for a good way to organize it has become more important, I have decided to convert parts of the WaterClaim site into a blog. This is the first entry in that blog and is designed to help test and make sure it is working.

Posted by Steve Smith at 08:49 PM | Permalink | Comments (0)