■ Constitutionality of LB 701 gets its first test Jan. 24. PAGE 1.
    
    By Russ Pankonin
    The Imperial Republican
     Should Kansas seek non-binding arbitration with Nebraska over Republican River water use, natural resource districts in the basin want to make sure they're included in the loop.
     During the Upper Republican NRD's meeting last week in Imperial, Chair Greg Pelster said the URNRD's manager and executive committee, along with members of the Lower Republican NRD board, met with representatives of the Nebraska Attorney General's (AG) office in McCook earlier this month on the issue.
     The meeting was held to discuss a 45-day timeline Kansas outlined in a letter to Ann Bleed and the Nebraska Department of Natural Resources.
     Kansas is seeking monetary damages for Nebraska's non-compliance with the 2002 Republican River Compact Settlement.
     It also wants irrigated ground within 2.5 miles of any stream or river in the basin, along with new wells added in the basin after 2000, taken out of production.
    Formal process not started
     Manager Jasper Fanning said Kansas' initial letter does not formally start an arbitration process between the states as set forth in the settlement agreement.
     At this point, the letter is just between DNR and Kansas' Department of Agriculture, which regulates Kansas water, he said.
     Fanning noted DNR will file a response to the letter with Kansas but added the AGs in the two states will also be talking, in efforts to find a resolution.
     The big concern noted by NRD board members to the AG's office was that they did not want to be left out of the loop about what was going on this time.
     URNRD Board Member Tom Terryberry said the NRDs want to be aware of what's being talked about by the two states. He added the NRDs said they don't want to be told what's going to happen after the fact.
     Fanning said the NRDs in the basin felt they weren't included in the settlement process last time and they don't want that to occur again.
     At the point that settlement talks began last time, the two states' AGs sat down behind closed doors and reached an agreement, Fanning said. Once achieved, the NRDs were told what they would have to live with, without any input along the way.
     They don't want that to happen again, especially if Kansas officially requests non-binding arbitration under the settlement terms.
     Fanning said the NRDs expressed their desire to have representatives in the talks, so the respective boards could be kept apprised of the situation and any progress.
     Pelster warned board members and the public that the AG's office is becoming more tight-lipped on what's going on. As a result, he told people to expect closed meetings between the parties soon to protect attorney-client privileges.
    Reason for confidentiality
     Fanning said Kansas "has been snooping around" for information on potential stream augmentation projects under consideration by NRDs in the basin.
     These projects would add groundwater to the streams to help Nebraska stay within its allotted allocation for compliance purposes.
     Fanning said Kansas told Nebraska they wanted to evaluate the information on the same basis that they are doing on projects Colorado has submitted. Colorado is also a party to the three-state settlement.
     What's interesting, Fanning said, is that Colorado has not submitted any projects for Kansas' consideration.
     "Certainly times have changed a bit from what they were a year or so ago, in terms of how folks involved are behaving," Fanning said.
     As a result, any information on the augmentation projects won't be released until it goes to the compact committee for consideration.
     Additionally, Nebraska will be less forthcoming with any other information related to efforts in the basin on compliance.
    Credit for surface water leases
     During the meeting, Board Member Kerry Bernhardt asked why the basin NRDs only got about 50 percent credit toward compliance for the surface water they leased this past summer.
     Sen. Mark Christensen has said it was his understanding initially that the basin would get 90 percent credit for the water that was leased.
     However, DNR allowed some downstream use of the leased water, reducing the overall credit to the basin.
     Fanning said as the early negotiations with DNR and the irrigation districts progressed, the NRD negotiators became aware they were only going to be allowed about 50 percent credit by DNR.
     Fanning said the AG's office said the water could be protected up to 100 percent. However, Fanning said the Bureau of Reclamation would not have allowed the purchases to go forward at such a percentage.
     As a result, the parties negotiated a 50 percent credit for the basin, which totalled about 13,000 acre-feet in credits.
     Fanning said the surface water leases would have not happened last year without such a concession.
     Christensen has introduced a bill in this year's Legislature seeking to protect leased water from depletions along the way so that the maximum amount of credit can be obtained.
     Sens. Christensen and Tom Carlson of Holdrege also plan to introduce a bill to get surface water owners paid for the water they leased to NRDs last summer.
     That payment has been delayed because a group called Friends of the River has filed suit challenging the constitutionality of LB 701.
     The bill, passed last session, authorizes NRDs to assess additional 10-cent property tax levy and a per-acre fee on irrigated ground. These proceeds would be used to pay off bonds issued to pay for the water.