Irrigation Status
Irrigation in the Republican River Basin
in Light of Kansas Demands for Less Irrigation
In 1998 the State of Kansas sued the State of Nebraska and a bit later the State of Colorado regarding irrigation in the Republican River Basin. Kansas argued that the groundwater irrigation in Basin reduced stream flow and that Kansas was deprived of some of the water it was owed.
In a series of rulings and out-of-Court agreements, Kansas, Nebraska, and Colorado agreed to use a computer simulation to estimate the influence of the groundwater irrigation on the stream. That simulation was agreed to in 2003 and a set of rolling averages were established that Nebraska and Colorado must adhere to.
There is a five year average and a two or three year average that must be met each year. All three States are in agreement that Nebraska and Colorado failed to meet the usage allowances.
As a result, Kansas has threatened to return to Court to seek enforcement of the existing judgment. Specifically, Kansas has requested that all irrigation wells within 2.5 miles of either side of the stream or tributary and any irrigation well drilled after the year 2000 be turned off. This would affect approximately 35% of the irrigated ground in the Republican River Basin.
Nebraska has countered with the following:
1. The computer simulation used by the three States has some demonstrable errors in it that should be corrected. Nebraska would still be out of compliance but by a lesser amount that the current flawed system calculates.
2. Nebraska passed LB701 in the 2007 Legislative session which places a tax on the Republican River Basin. The money from the tax is to be used to either purchase surface water from surface irrigation districts or to create a well field and pump water into the stream. The tax would be sufficient to raise the necessary funds to keep Nebraska in compliance each year in the future. However, the tax would not deal with any existing accumulated overages. Presumably, Nebraska would pay a financial penalty for past violations.
So rather than shut off any wells, Nebraska proposed buying water from surface irrigation or importing water. That has the benefit of not shutting off any wells and instead spreads the cost of keeping the State across all of the irrigated land in the Nebraska portion of the Basin.
The tax permitted by LB701 consists of two parts. A property tax on all real property and an occupation tax that is a fee on irrigated land. The bulk of the tax is on irrigated land. In 2007 the levy was set at about $7.00 an irrigated acre. In 2008, the tax was lowered to $4.00 an acre because the taxing district didn’t feel that it needed as much money because 2007 and 2008 were wet years so no purchase of water was expected to be necessary.
In early 2008, the property tax portion of LB701 was challenged. A District Court ruled that the tax violated the Nebraska Constitution because it placed the tax only on the residents of the Republican River Basin. The case is now on appeal to the Nebraska Supreme Court and a ruling is expected the Spring or Summer or 2009. An additional challenge to the occupation tax has also been filed on the same grounds as the property tax. The Supreme Court will probably merge the cases and rule on them together.
The Legislature is expected to modify the law so that the tax can be collected by any district in the State and hence making the law Constitutional. However, the Legislature may wait to do this until after the Court ruling.
Even if Nebraska does nothing it expects to be compliance in most years. By purchasing surface water or pumping water into the stream, Nebraska expects to be in compliance on a consistent basis. Kansas prefers that irrigation wells close to the stream be shut off but as long as Nebraska is in compliance then Kansas cannot dictate how that compliance is achieved.
Nebraska purchased surface water in 2006, 2007, and 2008. It is currently engineering a well field for augmenting the stream to either replace or supplement surface water purchases. Because of these activities, five year water allocations were set at sufficient rates to raise a good crop.
There are three Natural Resource Districts (NRDs) subject to water restrictions in the Republican River Basin. Each of the Districts is comprised of an eleven member board of locally elected people. Almost all of these board members are farmers that irrigate. The NRDs are the legal authority in the State of Nebraska to regulate groundwater usage. The Department of Natural Resources (DNR) regulates surface water and represents Nebraska in interstate negotiations regarding water. The DNR must agree to NRD groundwater policy and has veto power over it but cannot set the policy. If they cannot agree on a policy then it is appealed to a Statewide water board chosen by the Governor. This appeal process has never been used.
Water policy differs from NRD to NRD. Water regulations have been in place in the URNRD for the longest period. The NRDs were established in the 1970s. The URNRD has limited water usage to manage aquifer levels since the 1980s. Current water allocations are set to 65 acre inches over a five year period. If you do not use the full 65 inches, then you can bank those inches for future use. Most farms use less than their allowed inches and have a sizable bank of water.
In addition to being allowed to average water use over a five year period, it is also permitted to average water use between fields that are in the same water pool. For example, if a farmer has five fields and they are within six miles of each other and they are in the same pool, then the farmer can average water use between all of the fields. So he could use 100 inches in five years on field one as long as the other four fields used no more than 56 inches. As long as the water is managed wisely, very few farms ever exceed their allowance.
The water regulations have caused almost all fields to be irrigated with center pivots. Center pivots now are used on over 90% of all irrigated fields in the URNRD while the State average is about 65%. Most center pivots in the URNRD use the latest technology to reduce water evaporation. The farmers and NRDs in the Republican River Basin have demonstrated an ability to live with limits on irrigation and still raise crops that far exceed the national averages for yields.
Compliance with the Compact regarding the Republican River is achieved by limiting the total amount of water pumped by groundwater irrigation and then supplementing the stream in the very dry years with either surface water or a well field that pumps water into the stream. The cost for the augmentation programs is paid for by a tax on all irrigated acres in the Basin. The tax is variable so that it can be adjusted to meet the requirements which fluctuate based on the weather. The tax per irrigated acre is between $0 and $10. The first year tax in the URNRD was $6.95 an irrigated acre and in the second year was set at $4.00 an irrigated acre. The tax rate in the other NRDs is similar. The tax and this solution to the Republican River Basin issue should be workable if either the Nebraska Supreme Court upholds the tax or the Legislature modifies the tax to include more of the State so that the tax is Constitutional.