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Single-digit allocations or shutdown of 100,000+ acres in DNR proposal for water-short years PDF Print E-mail

DNR to brief URNRD patrons at Oct. 22 meeting

By Russ Pankonin
The Imperial Republican

Irrigators in the Upper Republican Natural Resources District (URNRD) could face allocations of a mere 5.9 inches per year or see up to 44,000 acres shut down under a plan proposed by the Nebraska Department of Natural Resources (DNR).
The plan was expected after DNR held a Holdrege meeting in September to say how they would deal with water-short years to stay in compliance with the 2002 compact settlement with Kansas.
The URNRD will get their formal briefing of the proposal next Thursday, Oct. 22, beginning at 7:30 p.m. at the URNRD headquarters.
The Lower and Middle Republican NRDs have already been briefed on the proposal.
URNRD Manager Jasper Fanning said DNR’s water-short year proposals represent the worst case scenario if the basin cannot find funding for augmentation, surface water leases or other projects to keep the state in compliance with Kansas.
A water-short year occurs when the deliverable amount of irrigation water in Harlan County Reservoir drops below 119,000 acre feet.
That will not be a problem in 2010 as Harlan is nearly full. However, DNR estimates water-short years will occur at least three years out of every 10 years.
DNR offering three options
Fanning said DNR has presented three different options for NRD boards to consider.
• Option 1 would permanently cut groundwater allocations by 60 percent.
Under such a scenario, irrigators in the URNRD would receive a permanent allocation of 5.9 inches per acre. In all likelihood, Fanning said the carry-forward tool now available in the URNRD would be lost.
The MRNRD irrigators would get 4.8 inches per acre and LRNRD would get 3.6 inches per acre.
• Option 2 would shut down all wells in an area defined by DNR as
the 10%–5-Year Rapid Response Area.
What this means is the amount of water pumped by these wells over a 5-year period would cause a 10 percent reduction to stream flow, Fanning explained.
Under this option, 44,500 acres of ground in this designation would be shut down in the URNRD alone. In the entire basin, it would amount to 190,100 acres.
This option would shut down the most number of acres because it includes all the acres affected in Option 3.
• Option 3 would shut down all wells in a somewhat smaller area defined by DNR as the 10%–2-Year Rapid Response Area (RRA).
This means the amount of water pumped by these wells over a 2-year period would cause a 10 percent reduction to stream flow.
This would shut down 22,700 acres in the URNRD. In the entire basin, it would shut down 110,000 acres.
Surface water could also be curtailed in any of the options to ensure compliance in water-short years.
Under Option 2 or 3, the landowner would receive no compensation for shutting down wells.

Fanning noted that not each basin NRD has to select the same option. However, DNR is seeking some guidance from each NRD on their preferred option by December.
Despite that deadline, Fanning expects it will take several more months before all rules and regulations can be adopted.
In addition to the three options, DNR suggested the NRDs still work on additional programs for voluntary retirement of acres.
Shutdowns a last resort
Fanning reiterated the measures proposed would only be put into place as a last resort if the basin does not come up with a funding mechanism for compliance projects.
In recent arbitration with Kansas, the arbitrator said Nebraska didn’t have plans in place to deal with future water-short years.
By adopting such plans, Fanning said this could better insulate Nebraska in further arbitration or if Kansas takes the issue to the U.S. Supreme Court.
Fanning felt these options provide the opportunity to regulate the fewest acres in the basin.
The 10/5 and 10/2 RRAs have a somewhat smaller footprint than the quick response areas adopted for the CREP program, which voluntarily retired irrigated acres.
The quick response area included wells within 2.5 miles of a river, tributary or stream in the basin.
Despite being smaller, the RRAs still have the potential of adversely affecting operators who irrigate within those areas.     
Funding still the key
Both Fanning and 44th District Senator Mark Christensen of Imperial say the ability to charge an occupation tax on irrigated acres in the basin remains crucial.
That would provide the necessary funding for augmentation projects or surface water leases to stay in compliance in water-short years without drastic shutdowns.
LB 701, which was passed in 2007, provided funding for such projects through an additional property tax levy in the basin and an occupation tax of up to $10 per irrigated acre.
However, the property tax portion was declared unconstitutional by the District Court and Nebraska Supreme Court, but for different reasons.
The District Court said the tax was unconstitutional because it applied only to the Republican Basin, making it closed-class legislation.
The Supreme Court said the tax was a local property tax collected for a state purpose. This solidified the thought that compliance is a state responsibility.
The occupation tax is now facing the same constitutionality test in a Lancaster County District Court.
Christensen said he’s already looking at new legislation that would remove the closed-class issue in a way that Governor Heineman and the Legislature would support.
Heineman has said he won’t support allowing all NRDs the right to impose the occupation tax.
Fanning said the worst-case scenario could occur if the court rules the occupation tax is a local tax for a state purpose.
He does not believe it is but that will have to be decided by the courts. Regardless of the decision that comes down from District Court, the non-prevailing side will no doubt appeal to the state Supreme Court.
As a result, the occupation tax could be tied up for at least another year. Trial on the occupation tax is set for this December.