State Obligation
The State, as a defendant in the LB 701 lawsuit, acknowledges that Compact compliance is a State obligation. It does so in its first brief to the Court. The State argues that the taxes allowed to the NRDs in the Republican River Basin are not mandatory but are optional taxes that permit the residents of the Basin to have access to more water. What the State has said to the Basin residents is that the only alternative to the very large tax increase is the loss of access to water for a large portion of the Basin.
Therefore, the State has limited the Republican River Basin to two very unattractive options -- either increase taxes dramatically to cover the State’s obligation or face the prospect of economic catastrophe. The State, by its refusal to honor the duty it negotiated and to which it agreed, has caused the NRDs to plead for higher taxes in order to avoid the only other option the State has made available to them.
There are multiple ways for the State to meet its Compact obligations. It can do so by:
- 1. Limiting surface water diversions.
- 2. Purchasing surface water and leaving this water in the stream.
- 3. Shutting off groundwater irrigation wells.
- 4. Augmenting the stream from groundwater wells.
- 5. Augmenting the stream from another Basin, such as what Colorado does.
- 6. Reducing conservation practices that limit the virgin water supply.
- 7. Removal of most of the massive vegetative growth that has occurred since the dams were built in the 1940s and 1950s (not just the 1% that have been temporarily labeled invasive species).
- 8. Correct several of the formulas in the 2002 accounting procedures negotiated with Kansas that artificially favor or disfavor certain types of activities.
- 9. Or, some combination of the above.
Yet, the State informs the Court and residents of the Republican River Basin that they have just two choices: shut off the wells close to the stream or pay a big tax.
“The only way Nebraska can comply with the river agreement is to limit use of water by taxpayers who consume water in Republican basin. Compliance must fall on the shoulders of those who use water in the basin and nowhere else.” Nebraska Attorney General Jon Bruning - Written arguments before the Lancaster District Court.
The Nebraska Constitution grants irrigation as a natural right. The Constitution does not obligate the State to cause irrigation, but it does protect the opportunity to irrigate as a right of its citizens.
When the State provides the residents of the Republican River Basin with only two options (pay the cost of meeting the State’s obligation or turn off many irrigation wells), the citizen’s Constitutional right to irrigate is threatened and potentially denied. This is a form of extortion. “Pay my bill for me, or lose something you consider very valuable.”
The cost of the tax is far less than the economic impact caused by the loss of access to water. So, the residents agree to pay the State’s bill as the lesser of two mandated evils. The NRDs recognize this economic reality and, hence, go to the Court asking to levy the taxes, even though this is very unpopular with the people they represent. They don’t believe they have any other viable economic choice but to pay the State’s bill.
Kansas asserts that 43% of the irrigated acres (which is about 75% of the wells) in the Nebraska portion of the Republican River Basin must be completely shut off for many years in order for Nebraska to comply on a consistent basis. (The wells close to the stream tend to be more numerous and smaller.)
Computer simulation runs by the Nebraska DNR confirm this level of loss, if Nebraska is to comply via the termination of groundwater use only.
When Nebraska declines to exercise any of its options for achieving compliance and leaves the burden on the residents of the Republican River Basin to finance any solution, the State is failing to meet its acknowledged obligation to honor the Interstate agreements it negotiated without input from the Basin representation. Plus, the State is failing to protect the Nebraska Constitutional right of many of its residents to the opportunity to irrigate.
When the State of Nebraska has affordable alternatives available to forestall this eventuality but does not exercise them, it fails in its basic duty as a government. Plus, State policy has long encouraged what it is now condemning. The Governor, the Attorney General, and our Legislature are choosing to put the burden on the Republican River Basin. They have other options, but this is the option they are choosing.