Much of the recent focus on water has been on the inability of the NRDs to pay for the surface water they purchased. However, there are even bigger problems.
There is enough water currently in storage in the Nebraska reservoirs to eliminate the accumulated water overage we have with Kansas. It appears that Nebraska intends to allow this water to be used on crops in Nebraska in 2008, rather than give Kansas what it is due according to the Compact. This probably won’t gain Nebraska any sympathy from a judge.
This water is “owned” by the Nebraska surface irrigation districts, such as Bostwick and Frenchman Cambridge. Because the State of Nebraska and the NRDs did not purchase as much water as was possible in 2007 nor pay for the water that they did purchase in a timely fashion in 2007, and because commodity prices are very high, some surface irrigators are telling people they will not sell the water they control.
It is prudent to consider what happens if surface water cannot be purchased in 2008 for delivery to Kansas. Nebraska’s consumptive use would increase. Nebraska would continue to fail to comply with the Compact, which means it is increasingly likely that Kansas will sue and win and a Federal Judge will take over water policy from the State of Nebraska and the NRDs. And, it would be impossible for the NRDs to honor the Integrated Management Plans they are “asked/required” by the State to sign. Plus, any water the NRDs put into the stream can and will be diverted by Nebraska surface irrigation districts before it gets to Kansas, making the problem much worse.
The NRDs cannot force the sale of surface water. Their only alternative is to augment the stream and ask the Legislature to protect that water as it is delivered to Kansas. While there have been discussions about building a pipeline or importing water, these plans are still at the discussion phase -- just as they were several years ago. If there is no surface water purchase, and if there is no augmenting the stream, then Nebraska is guaranteed to repeatedly fail to comply with the Compact.
The State has said this means that all wells within 2.5 miles of the stream will be shut off without compensation and, in order to be “fair,” that perhaps all ground water irrigation will be shut off. How much of that is a negotiation tactic? All we know is that, in Colorado, it is not a bluff. Colorado is forcing the shut down of all wells within 3 miles of the stream without compensation, even though they know it will not be enough. It is step one and more shut offs are threatened.
Nebraska is making it impossible for the groundwater irrigators to protect themselves from this outcome. The State will not approve any workable plan. It will not approve any augmentation plan. It will not agree to protect the water the NRDs put in the stream. It will not deliver the water that is in the reservoirs now to Kansas, which would eliminate the accumulated overages. The NRDs have done everything the State has asked of them, yet it is never enough. The State of Nebraska will not act to comply fully and is blocking the NRDs as well.
So, what can an NRD do? Since it cannot force anyone to sell them surface water and since shutting off wells or reducing allocations will not result in compliance for many years, the NRDs have only one option left. That is to augment the stream. If wells are drilled in the Basin for compliance purposes, then Kansas must approve those wells before they are drilled. It appears that Kansas is requiring that any such wells be drilled far from the stream in order for that idea to be acceptable to them. That would, then, necessitate miles of pipeline at great expense. Kansas is saying that Colorado wells need to be at least eight miles from the stream.
Alternatively, the NRDs could import either surface or ground water into the Basin. This is the most efficient and least expensive option. If groundwater is used as the source, then no approval is needed from either Kansas or the DNR.
Obviously, it is best to find a solution that is acceptable to everyone. However, at some point in time, the NRDs will need to take action to defend themselves by being able to make a clear case to a Federal Judge that they have done everything in their power to comply, even while compliance is actually being prevented by forces beyond their control. They will need to act to implement a stream augmentation program, even if the State will not cooperate. Let’s not let the lawsuit about the constitutionality of the property tax divert our attention away from the much larger problem of assuring there is a way to comply even if access to surface water is denied. Take some time and consider what the options are if surface water cannot be purchased and used for compliance.