This is a very long write up but the very short version of how water policy was made. Someday, I may write up more of the details of exactly how the process works and what some of the motivations behind those decisions might be. I will try to avoid names.
When the 2007 Legislative session began, the NRDs did not have any suggestions for the Legislature. Nor did the DNR, which acts on behalf of the Governor, bring anything other than a minor technical bill. Neither brought a bill to the Legislature for consideration. The recommendation, at the beginning of the session, by lobbyists from the NRDs, was to wait until 2008 to take action and only commission a study for 2007.
Senator Christensen decided that it was better to have a solution in 2007. He introduced LB 701 as his suggestion on how to do that. LB 701 is an attempt to resolve the water problem in the Republican River Basin. The first two drafts were written by WaterClaim, in close association with Senator Christensen. In the winter of 2006, the Senator and WaterClaim sat down with the managers of each of the Republican River Basin NRDs and several of the board members from each NRD. The group brainstormed together on what a bill should have in it and how it should work. The first draft of LB 701 included all of the NRD suggestions, and their suggestions made it a better bill.
WaterClaim and the Senator then sat down with the surface irrigation districts. This included the managers and many of the board members. The Senator is both a groundwater irrigator and surface water irrigator and is very familiar with both types of systems. LB 701 used many of the Senator’s ideas for the bill.
The first draft included the idea of a committee made up of mostly NRD representatives. It was called the BAC. The idea was for the BAC to set the allocation for each NRD and for the DNR (controls surface water allocation), and to conduct basin wide projects such as imports, surface water buys, vegetation management, and land retirement. It would then be up to each agency to set the allocation for their users to make sure things stayed within the allocation for the agency. This concept was written up and submitted as a bill in early January.
Over the next month, the NRDs decided that they didn't like the BAC idea after all. They each were afraid that the other NRDs would outvote them and set the amount of water they could use at a low level. The more they thought about it, the more the NRDs decided they trusted the DNR more than each other.
They began to let the Senator know that they would like the BAC to disappear. The problem with removing the BAC is that the entire structure of the bill fell apart. If the BAC was removed, then the DNR would be given the money and tell the NRDs how to spend it. Because the head of the DNR wants much less irrigation, we felt that removing the BAC would give the DNR the financial leverage to force a major reduction in allocations, as the DNR suggested in December 2006 at a meeting in McCook.
But, the NRDs began to not only just dislike the BAC but they decided they had a better idea. The executive board of the Upper Republican NRD led this change. They felt that, because of the relationship between WaterClaim and the Senator as well as our position that the BAC needed to exist, the only solution was to find another Senator with whom to work.
For a variety of reasons, they chose a Senator out of northeast Nebraska who agreed to help them develop their plan without the knowledge or participation of the Senators in the Republican River Basin. During March, the Republican NRDs, the Association of NRDs (NARD), and legal counsel for the Natural Resources Committee, in cooperation with special counsel for the Attorney General's office and the DNR, crafted a new idea.
The essence of the NRD idea was to allow the NRDs to collect a new tax. The NRDs would be given the money and the authority to spend it as they saw fit. The local tax money would be supplemented with some State money for the first two years. After that, the NRDs would be on their own to make sure they kept the State in compliance with the State's obligations to Kansas.
The NRD plan was developed in secret without the participation of anyone who disagreed with the framework of what they wanted to do. The advantage of their approach is that they could move fairly quickly because each of the parties generally agreed with each other in principle. The disadvantage of their approach is that a small closed group is prone to make mistakes. Because competing ideas were excluded during the development of the process, the end product reflects only their ideas.
The NRDs portrayed what they developed as having wide support. The Governor was on board because most of the cost, over 90% of the long-term costs, is paid for by a tax that doesn't come out of his budget. The surface irrigators were on board because they were being paid at a rate they couldn't refuse while retaining their ability to irrigate from groundwater wells if they had them and retaining their ability to sell the water again in future years, at the high rate. The NRDs were on board because they developed the plan and it put them in control. Yes, they had to pay a very high tax, which most of them would also have to pay personally, but they also got the ability to continue to irrigate at what they hope is nearly the same level they have been.
At the end of March, this group then came to the Senators with a water bill and said, “Here is what we want to do. We have all of the key players on board: NRDs, surface irrigators, DNR, and the Governor. True, at the beginning of the session, we didn't have any ideas; but now, we do. And, we will use your bill (LB 701), Senator Christensen. Please gut what you have in LB 701 and let us insert our language.”
On March 27, 2007, Senator Christensen decided it was better to adopt the language that the NRDs crafted and jettison what he had been working on and advocating. The argument the NRDs used was that if Senator Christensen didn't cooperate, another bill would be found, and, if he didn't cooperate with that, he would be responsible for the failure of the economy of the Basin. They also insisted that WaterClaim be excluded. The pressure came from all levels. It was well organized and intense.
The Senator felt that it was in the best interest of the people that he not only adopt the NRD version but to become its champion. WaterClaim was excluded from involvement with the creation of the NRD’s version of LB 701, which now sits at a stage in the Legislative process where it will likely become law.
The Senator's decision alienated many of the people who voted for him and who helped him win the election. Some of the individuals on the NRD boards in his District had campaigned against the Senator in his election bid, yet the Senator decided that it was best to adopt the NRD proposal as his.
The Senator should be commended for being willing to make a stand, even if it disagrees with his key supporters and agrees with those who worked against his election. It was not an easy decision. He is also aware that a sense of betrayal is intense in the District. The reason the anger is so great by his closest supporters is that they feel that he could have achieved a different outcome that was more in line with his original proposed solution if he had chosen to. His supporters knew it would not be easy for him in Lincoln. But, they had built up their hopes on the promises he made during his campaign. It really is a matter of perception. The supporters know he tried. But, what they feel they will never know is whether or not if he had tried just a bit more, could he have succeeded. They wanted him to try. He was seen as strong-armed by a group of water policymakers and having switched sides without ever presenting a "better" solution to the full Legislature.
At the same time, the adoption of any bill, even if it is not liked, is supported by many farmers. Most feel that any bill, even one that has huge new taxes, is better than being shut off. That doesn't mean the bill is the best version or even one that has the support of the people. It means that it is probably better than nothing.
Right now, the residents of the Basin are having a gun held to their head and told that, “if you don't drink the cup of poison, you will die now.” A rather persuasive argument. So, you drink the poison and hope the antidote is nearby. At least you bought yourself some time, maybe. There was a move to require a vote of the people as to whether they support a bond or not. But again, such doesn’t seem like a real choice. “Choose the prescribed poison, or lose all of your water and let the District die.” A vote, in this circumstance, would have only allowed the elected officials to shift responsibility from themselves to the voters. A more fair solution would have been to present the public with various ideas and let them have input on the solutions they prefer to make happen with their tax dollars. It is a matter of power. Who gets to determine the make up of the offered drink? Providing the public with only one option allows for much more control than to let the public choose from several different options.
The primary differences between the NRDs and the supporters of the original water bill (LB 701, as originally written) are philosophical. How does the process work? Should ideas be crafted in secret with little public input, or should they be developed in the open where everyone can point out the flaws and make it a better policy? The closed process won the day. The NRDs agreed to provide large amounts of cash to the surface irrigators; and the State agrees to allow this process, since it doesn't have to make any major financial contribution unless the plan fails.
If this plan works, it is largely to the credit of the Republican River NRDs and, specifically, to the URNRD executive board for their ability to craft a solution that might work. If the plan fails, it is also the NRDs that deserve the credit.
We will not know for a year or two, or potentially even more, if this works or doesn't. Each NRD is on its own. Each NRD can succeed or fail on its own. If they fail, the entire State fails and they will drag every NRD in the State down with them. If they succeed, then they will do so without much glory, as the route they have chosen will have very high taxes, the purchase of water rights from people who didn't want to sell, and a continued reduction of allocations for irrigators.
The reason officials prefer the closed process is that it reduces the amount of criticism they take. It reduces the number of people they have to listen to. It reduces the opposition. It makes it possible to change one’s mind without being ridiculed. It makes it possible to do things without someone holding you accountable. The desire for secrecy is common, all the way from a local community board to the highest office in the Nation. It is the way humans work. But, just because individuals prefer to hide, it doesn't make it the best way to do things.
Another reason for secrecy and package deals is that many elected officials do not believe the masses are educated enough to make an informed decision. And, it is true in some circumstances. Many people don't attend meetings. They don't participate in the discussion until after the decisions are made. Sometimes, they don’t comprehend the subject because they don’t like to read or because they haven’t attended informational meetings. From the elected official’s viewpoint, after repeating yourself too many times, it does become very tempting to just ignore the public and do what needs to be done. Yet, for the sake of the Republic, it is necessary to go through the process properly so that everyone has a chance to participate if they want to.
At the same time, it goes the other way, too. Here, the NRDs didn't believe the Senators cared enough or had enough time to understand all of the details. So, they brought a package deal to the Legislature. What Senator would want to understand the intricacies of commingled wells; carryover; why there are 2 year, 3 year, or 5 year averages that overlap; etc? The only problem is if one of those people who don't share the agenda of the "in group" dares to speak up. Doing so might unravel the entire package. The “carefully-crafted compromise” is put at risk by anyone who points out some of the problems that were "overlooked" in the development of the plan. By doing things in secret and excluding those who don't share the agreed-upon agenda, there is a high risk that one of these outside parties will speak up and cause problems.
So, how is that uncontrolled party tamed? It depends on how strong the party is. If they are strong enough, they have to be brought into the group and their concerns have to be incorporated into the package, such as what happened when concerned Senators were brought into the group on April 18th, just before the NRD version of LB 701 came up in Select File on the Floor the next day. If the uncontrolled party is not seen as strong enough, they can be excluded, as WaterClaim was. Yet, even one person speaking the truth can cause a lot of problems for a prepackage deal. So, the parties of the agenda paint anyone who doesn't agree with them as the problem: “Their numbers are bad. They are radicals. Nothing they say can be trusted. They will never compromise.” It is a whisper campaign where they attempt to tarnish the credibility of those who don't agree with them. It is how politics is played. It is dirty; it is ugly; and, it is done even by people who sit on the NRD boards.
Even though the NRDs, in close cooperation with several State employees, created this last version of LB 701, it will be Senator Christensen's name that is on it for years, just as Senator Schrock's name is associated with LB 962. Today, Senator Christensen has his name on this bill. He knows it is not popular, especially with the people who voted for him, but he feels that this was the solution for the District’s sake. In my opinion, LB 701 is not now the least expensive nor the most efficient solution. It is, however, the solution that the elected representatives of the Basin chose.
LB 701 shifts the power to the NRDs. Their budgets will multiply. Their authority will multiply. The NRD seat will become one of the most important elected seats in the region. The policies the NRDs set will have far-reaching economic consequences. Some towns will thrive and others will lose, depending on how the NRDs decide to do things.
While the NRDs have been dominated by irrigating farmers, that may change. The increase in responsibility will attract people with different interests. District boundaries will become very important and will likely change to protect certain people. Election procedures, which are very different from NRD to NRD, will play a factor.
Reviewing the process of the water bill, one can see that the decision on water policy was not made by the Legislature. It was made by a subset of the NRD board members in the Republican River Basin that obtained support for their version of the solution from the Governor and the surface irrigators by structuring the money in a way they could support. That was, then, brought to the Legislature as a package deal, which the Legislature was asked to approve. When almost all of the water policy makers are saying, “Please do this,” the Legislature isn't likely to refuse them. The key to getting any legislation passed is to get all of the "players" on board.
If you like or don’t like what has happened, then just keep in mind that who you elect is of extreme importance. It isn’t so much what they say they will support or not support. What matters is their personality and how they make decisions. It is who they surround themselves with and who they listen to. Elections matter. Letting your voice be heard, at the local and State level, is important. And, continue to do so. Don’t give up. Strengthen your voice by joining with others with similar beliefs and work together to make things happen the way you think they should happen. Politicians tend to listen to groups more than they do individuals. And, if you don’t feel like your elected officials are listening, then let them know you will elect someone you think will do so and continue to do so once in office. Yes, you will be burned by politicians, but we have a better form of government than most countries. We have the ability to vote and to communicate with them, in a variety of ways, once they are in office.