The Republican River Settlement

By Former Nebraska Attorney General Don Stenberg

            This is in response to the Omaha World Herald’s recent editorial that says as Nebraska’s Attorney General I encouraged Republican River basin irrigators “to cling to unrealistic expectations and repeatedly sold farmers [my] overconfident attitude about Nebraska’s chances of winning in court.”

            With all due respect, we were every bit as successful in court as I had said we would be.  Kansas sued the State of Nebraska for millions of dollars of money damages and an injunction shutting down some of the then existing water use in Nebraska.

            Under the settlement, Kansas did not get a single penny (let alone the millions of dollars State Senator Ed Schrock and others had predicted), and did not get an injunction shutting down any then existing water users in Nebraska.

            Not only that, Kansas agreed to five year and two year (in water short years) averaging, which actually made future Nebraska compliance with the  Republican River Compact easier than it had been in the past.

            We did, of course, have to agree to abide by the Compact in the future because that agreement had been entered into in 1943 (five years before I was born), and remained a legally enforceable obligation.  Under the 1943 Compact, Nebraska is allocated 49% of the virgin water supply of the Republican River Basin.  It is the 1943 Compact and the current drought conditions, not the settlement, which causes the problem we face today.

            It is also important to understand what the settlement with Kansas did not require.  It did not decrease by a single gallon the amount of water Nebraska is entitled to use.  It did not require the passage of LB962, which is now being used by the State of Nebraska to limit irrigation all across the state.  And the settlement did not specify that compliance with the Republican River Compact had to be achieved by limiting pumping from existing groundwater wells (see page 27 of the Settlement).

            The job of the Attorney General is to give the State of Nebraska the best possible legal defense based on the law and the facts.  We did that, and achieved everything that I said we would.

            While it is the responsibility of the Legislature, not a former Attorney General, to decide how to deal with the problems which have arisen since I left office, I will offer some advice.

            Rather than severely restricting groundwater irrigation in the Republican River Basin, the State of Nebraska should short term lease or purchase surface irrigation water rights from willing sellers, and use that water to comply with the Republican River Compact.  This alternative is specifically provided for in the settlement (page 27 of the Settlement).

            According to the experts, 80% to 90% of Republican River flows are from snow melt and rainfall runoff.  Only 10% to 20% is from groundwater sources.  And in order to put one acre foot of water in the river by shutting off wells 10 or 20 miles from the river, it might be necessary to shut off 100 acre feet, 1000 acre feet or more, of groundwater irrigation.

            Trying to deal with the Republican River problem by severely restricting groundwater pumping will have a devastating economic effect all across south central Nebraska.  Income and sales tax losses to the state as a result of this economic devastation would greatly exceed the cost of leasing or buying the necessary water from willing surface irrigators and using that water to comply with the Republican River Compact.