By Russ Pankonin
    The Imperial Republican
     Kansas started the clock ticking last week by officially notifying Nebraska they want actions taken to bring Nebraska into compliance with the Republican River Compact Settlement (RRCS).
     David Barfield, chief engineer for the Kansas Department of Agriculture, sent a letter to Ann Bleed, director of the Nebraska Department of Natural Resources, outlining specific actions they expect Nebraska to take.
     In the letter, Barfield told Bleed Nebraska has exceeded its allocation in 2005 and 2006 by 82,870 acre feet. These two years were designated "water-short" years according to the 2002 settlement terms.
     In addition, for the 2003-2007 reporting period, Kansas estimates Nebraska exceeded their allocation by more than 143,000 acre-feet.
     In a phone interview Friday, Dec. 21, Barfield said Kansas alerted Nebraska at the annual compact meeting that Nebraska was out of compliance and that they would begin seeking remedies.
     He said he's been working for several months with the Kansas attorney general on what Nebraska needs to do to pay for past violations.
     "But more importantly," Barfield said, they've been working "to come up with a plan for compliance in the future that will assure us that we're going to get the water we're entitled to."
     In 2006 and 2007, Nebraska purchased or leased surface water to be used toward compliance issues.
     But Barfield said that's only one piece towards Nebraska's compliance efforts. "Currently that (leasing surface water) hasn't been sufficient," he noted.
     Barfield said Kansas believes significant cuts in groundwater pumping will still be necessary. "We're open to ideas but this 'we're going to buy surface water-trust us' just isn't working," he said.
    Remedies being sought
     First of all, Kansas is seeking monetary damages equal to how much Kansas was damaged by not getting their water or how much Nebraska benefitted from the water, whichever is greater.
     To reduce groundwater use, Kansas wants all irrigation wells in Nebraska within 2.5 miles of either side of the Republican River and all of its tributaries shut down.
     Furthermore, they want all wells drilled in the basin after 2000 to also be shut down.
     Nebraska must respond to Kansas' demands within 45 days. Nebraska officials have indicated they will meet that deadline but noted they are unlikely to agree to Kansas' demands.
     That will send the process into arbitration. If no agreement can be reached in non-binding arbitration, the issue could end up back in front of the U.S. Supreme Court.
    URNRD adopts IMP
     During a special meeting Thursday, Dec. 20, to review proposed rules and regulations, the Upper Republican Natural Resource District (URNRD) board made several minor revisions and voted to forward the rules and regs for public hearing. No date has been set for the hearing.
     The rules and regs include a 13-inch allocation for a five-year period.
     In addition, the board also opted to approve the proposed integrated management plan (IMP) on a 11-0 vote.
     The IMP vote had been held up due to the uncertainty of funding for projects outlined in the IMP, such as surface water purchases, augmentation and transfers.
     URNRD Manager Jasper Fanning told the board these are key elements for the URNRD to remain in compliance without drastic allocation reductions.
     LB 701, passed this year in the Nebraska Legislature, allows Republican Basin NRDs to levy additional property taxes and a per-acre occupation tax on irrigated acres to pay for IMP projects.
     A lawsuit filed by a McCook-based group called Friends of the River is challenging the constitutionality of additional property taxes and occupation tax.
     The URNRD received assurance in a letter from Bleed that the IMP can be reopened and reviewed if LB 701 is found to be unconstitutional.
    Sen. Christensen looking for ways to pay for surface water
     Imperial Senator Mark Christensen said he is exploring ways in which to get surface water owners paid for the water they sold in 2007.
     Because of the lawsuit challenging LB 701, the NRDs have been unable to sell bonds to pay the surface water owners.
     He said it may be possible to transfer money from the state's cash reserves into the Governor's Water Trust Fund.
     The Legislature approved appropriating nearly $3 million annually until 2012 for the fund.
     Christensen said this money could then be used to pay for the surface water purchases.
     Assuming LB 701 is ruled constitutional, funds collected under the bill could be used to reimburse the cash fund at a later time.
    Colorado's first test next year
     Colorado was also sued by Kansas in the same suit as Nebraska and is also a party to the 2002 RRCS.
     Barfield said Colorado has also been overusing its allocation and knows it has a compliance problem. But their first test will not come until next year.
     Colorado's remedies will be much different than Nebraska because of a limited number of wells within the 2.5-mile boundaries as well as limited surface water. "Their options are limited," he noted.
     He said Colorado has shut down some wells and retired acres but still has work to do to come into compliance.
     He said they are considering purchasing water and piping it to the state line in order to reach compliance. From early estimates, such a plan could run from $40-80 million.