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Republican River

In this file photo, the Republican River flows in southwest Nebraska below Harlan County Lake.

James Uerling has a permit that dates back to 1890 giving him the right to divert water from the Republican River to irrigate 314 acres in Red Willow County.

Yet last year those fields sat fallow. He didn’t plant because he knew there would be no water to nourish his plants, and with drought gripping the state the plants would produce no yield. Instead of feeding the corn he grew to his cattle, he had to buy it in town.

On Thursday, Uerling and four other farmers in the Frenchman Cambridge Irrigation District filed a class-action lawsuit against the state and the Nebraska Department of Natural Resources seeking damages they say they suffered because surface water that could have irrigated their fields was instead sent down the Republican River to Kansas to fulfill a 71-year-old three-state compact.

In January 2013, the Department of Natural Resources shut off the irrigation spigot from the Republican River, which starts in the high plains of Colorado and flows east across the northwestern tip of Kansas into southern Nebraska before crossing back into Kansas to meet up with the Smoky Hill River and form the Kansas River.

Rather than fill the networks of lakes, reservoirs and canals that provide irrigation in Nebraska’s Republican River Basin, the water flowed downriver to Kansas to fulfill requirements of the Republican River Compact signed in 1943 to allocate 49 percent of the river's water to Nebraska, 40 percent to Kansas and 11 percent to Colorado.

The lawsuit filed in Furnas County District Court asks for declaration of a class action and payment for damages to the crops of more than 150 producers.

Dave Domina, who is Nebraska's current Democratic Senate candidate and the attorney representing the farmers, said the amount of damages has not been tallied, but the total number likely would be in the tens of millions.

Uerling said he documented $137,000 in losses for his 314 acres last year and estimated another $110,000 for 2014.

“It’s not a matter of if they are going to bankrupt me, it’s when,” he said. “The state of Nebraska is obligated to pay persons like me who have historic and established rights to surface water used for crop production when the state takes water and uses it for different purposes.”

Meanwhile, Uerling said he is still paying taxes for irrigated land, which are much higher than dryland tax rates, and he has to pay for operation and maintenance of equipment.

“I have a lien on my property. If I don’t pay those, they confiscate my property to satisfy the lien,” Uerling said. “So I’m sitting here with all this equipment I bought to farm irrigated ground and it’s sitting there idle and just depreciating.”

Fulfilling state contracts is the responsibility of the entire state, Domina said Monday, not a minority of farmers in southwest Nebraska. Just like all taxpayers fund U.S. 34, even though they might not all drive on it.

"These surface water litigators, we contend, have a superior right under the state Constitution to that water, and under federal reclamation law, over the use of the water to satisfy the contract," Domina said. 

He said producers in the class-action suit were entitled to 18 inches of water per acre in 2013 and the state must compensate them for their loss, just as someone would be compensated if his or her land was taken through condemnation proceedings for a public project.

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Those who regulate ground and surface water usage in Nebraska will be monitoring the outcome of the case, said Jasper Fanning, general manager of the Upper Republican Natural Resources District, which is not a party to the lawsuit.

"If surface water users are entitled to damages if they're regulated, there is a possibility that groundwater users could be in the same situation," Fanning said.

If a payout is awarded, Domina said, factors that would have mitigated damages, such as a partial harvest, will be taken into account.

Kansas has filed lawsuits in recent years accusing Nebraska farmers of overusing the state's share of the water. The most recent suit sought $80 million in damages and the shutdown of almost 302,000 acres of Nebraska groundwater irrigation.

Water suits between the states are filed directly with the U.S. Supreme Court, which appointed Special Master William J. Kayatta to review the case. Kayatta made a 188-page recommendation in November that said Nebraska should pay $5.5 million and rejected the bid to shut down farm irrigation.

The Supreme Court is scheduled to hear oral arguments for appeals of the recommendation on Oct. 13.

State Department of Natural Resources Director Brian Dunnigan did not return a message seeking comment.

Reach the writer at 402-473-7304 or nbergin@journalstar.com. Follow him on Twitter at @ljsbergin.

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