With Nebraska mired in a lingering drought and federal court actions over water use, a task force created by the Legislature to come up with a long-range water plan began work Friday with an admonishment about how vital its job will be.
"We've got a noble mission," said Sen. Tom Carlson of Holdrege, chairman of the Legislature's Natural Resources Committee. "We all understand how important water is to everybody in the state of Nebraska."
The 34-member task force includes state lawmakers, members of the Natural Resources Commission and appointed members representing cities, sportsmen, irrigation and power districts, and farm and ranching interests. The task force will identify water resources programs, projects and activities in need of funding to meet long-term goals of preserving the state's water supply.
A key part of that supply is the massive Ogallala Aquifer, which runs beneath eight states including most of Nebraska and is a source of irrigation and drinking water for millions.
Carlson's legislation (LB517) created the task force, which he is chairing. When he was working on his family farm as a boy, he said, it was widely thought the aquifer provided an infinite source of water for irrigation.
"And we acted that way. Now I think most people in the state know and understand it's not unlimited. And we absolutely do not want to get in a bankruptcy situation as far as water is concerned."
As some 88 percent of the state is suffering from drought conditions, Nebraska is trying to comply with a 1943 agreement with Colorado and Kansas over water use in the Republican River basin.
The river, formed by the confluence of three smaller streams that originate in the high plains of northeast Colorado, flows generally eastward from Colorado into and along the southern border of Nebraska, into Kansas. There, it joins the Smoky Hill River and forms the Kansas River.
The 1943 agreement allocates 49 percent of the Republican River's water to Nebraska, 40 percent to Kansas and 11 percent to Colorado. But Kansas has long accused Nebraska of violating the compact by allowing farmers to divert more than their legal share of the river's water for private use.
Kansas has said Nebraska has allowed the proliferation and use of thousands of wells hydraulically connected to the Republican River and its tributaries, thus depleting the flow of the Republican River. That has led to two lawsuits involving Kansas and Nebraska, including one that is pending before the U.S. Supreme Court.
In 2003, Special Master Vincent L. McKusick, who had been appointed by the U.S. Supreme Court to oversee the dispute, said: “Nebraska’s assertion that the compact does not restrict groundwater pumping because it never mentions groundwater misses a critical fact: Although the compact never uses the word 'groundwater,' stream flow, which the compact fully allocates, comes from both surface runoff and groundwater discharge. Interception of either of those stream flow sources can cause a state to receive more than its compact allocation and violate the compact. Thus, the comprehensive definition of virgin water supply, even without use of the express term 'groundwater,' requires a conclusion that, as a matter of law, a state can violate the compact through excessive pumping of groundwater hydraulically connected to the Republican River and its tributaries.”
McKusick found that the surface and groundwaters of the Republican River Basin are interconnected hydrologically and that groundwater is included in “waters of the Republican River,” according to the lawsuit.
Last December, two groups of irrigators filed a lawsuit against the state of Nebraska and federal officials over a plan to pump groundwater from the basin into streams to comply with the 1943 agreement. The plan also would take some Nebraska farmland out of irrigation.
The lawsuit was filed in U.S. District Court by the Frenchman Cambridge Irrigation District, the Bostwick Irrigation District and three individual irrigators against Gov. Dave Heineman, the Nebraska Department of Natural Resources, the Upper Republican Natural Resources District and the U.S. Department of Interior, among others.
The lawsuit, which still is pending, says the 1943 compact and an earlier settlement between Kansas and Nebraska "regulate the virgin water supply of the basin. It does not permit the virgin water supply to be augmented from nonbasin sources or otherwise, and it does not permit water to be … accelerated into the basin by pumping it out of the groundwater supply and transporting it by pipeline, thereby accelerating its movement from the groundwater supply where it slowly travels, constantly, to the river. Yet, this is what the state defendants propose to do."
All those issues will guide the work of the task force.
"I am just convinced that if we develop a policy and a plan that will get us to water sustainability in the case of water in the state of Nebraska, we've done a noble thing," Carlson said. "We've done the right thing. And that is what I hope this task force is able to do."