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Republican River

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

Tired of finding themselves on the short end of the water meter, farmers in southwest Nebraska who rely on the Republican River for irrigation are suing for access to more water and for damages they claim to have suffered when state officials turned off their faucets to meet provisions of a 70-year-old interstate pact.

The Bostwick Irrigation District headquartered in Red Cloud filed a class action lawsuit this month on behalf of more than 160 of its members who have suffered due to unreliable water access for 118 farms, according to court records. The irrigation district covers about 22,400 acres.

Bostwick joins the Frenchman Cambridge Irrigation District in suing over water rights to seek relief.

The Republican River has been the source of multiple lawsuits that have cost Nebraska taxpayers millions. The Nebraska Attorney General’s Office in December asked for another $1.2 million to fight lawsuits filed by farmers and to pay consultants for ongoing negotiations with Kansas.

The river starts in Colorado’s high plains, crosses the northwestern tip of Kansas and then flows into southern Nebraska before re-entering Kansas in its northeastern corner and eventually meeting up with the Smoky Hill River to form the Kansas River. The states signed a compact in 1943 that divides the river’s water, giving Colorado 11 percent, Nebraska 49 percent and Kansas 40 percent.

Kansas has long contended that Nebraska farmers use more than their share. The U.S. Supreme Court last year ordered Nebraska to pay Kansas $5.5 million. Nebraska hailed the ruling as a victory because it was much less than the $80 million and shutdown of thousands of acres of Nebraska farmland for which Kansas had asked.

Nebraska and its natural resources districts have instituted a variety of measures to ensure Kansas is happy with the amount of water it’s getting, including pumping water from the Platte River into the Republican and shutting down farmland and using its irrigation wells to pump water into the Republican.

The states recently extended a one-year agreement that lets Nebraska use more than its share of water as long as it places water in storage for Kansas over the winter and spring, when it's not being used for agriculture.

The states are working toward a long-term agreement.

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But farmers who use surface water in the Republican River watershed say they have been forced to bear more than their fair share of irrigation restrictions.

They contend that water being pumped from wells has caused surface water to dry up and those depleted flows caused state officials to impose restrictions on using surface water.

“Only surface water users such as Bostwick have been shut off for compact compliance, while wells have been allowed enough water to continue irrigating a full crop,” the Bostwick Irrigation District said in a news release.

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Jasper Fanning, general manager of the Upper Republican Natural Resources District, disputed those claims. He said surface irrigation infrastructure in the area hasn't been sustainable since its inception in the 1930s.

Fanning said NRD programs that are pumping water into the Republican are allowing surface irrigators to continue using the river.

"I have a hard time seeing how they think they're the ones shouldering the burden of compact compliance," Fanning said. "Essentially they are allowed to use the same volume of water even though that water belongs to Kansas and the NRDs make up the entire projected shortfall."  

The demands of the Bostwick lawsuit include reimbursement for unspecified financial damages related to restrictions in 2013 and 2014; for the river integrated management plan to be declared unlawful; and for the 2016 compact compliance actions to be deemed unlawful.

The Bostwick lawsuit was filed against the Nebraska Department of Natural Resources and its director Gordon “Jeff” Fassett, as well as the Upper Republican, Middle Republican and Lower Republican NRDs.

Bostwick filed its lawsuit Jan. 11, and Frenchman Cambridge refiled its suit Jan. 7, both in Lancaster County District Court.

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

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