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Drought’s Long-Term Damage|May Come From Underground

BEAVER CITY, Neb. (CN) - As severe drought wreaks havoc in the West, stoking forest fires and slamming agriculture, it's creating contention even in areas of the Great Plains that are enjoying a welcome relief from it. But many farmers say their problems come not from the sky, but from underground.

For the second year in a row, farmers from four counties in Nebraska have sued the state and its Department of Natural Resources, claiming their lax policies on groundwater pumping for irrigation have drained surface waters in the Republican River Basin, on which their livelihoods depend.

Farmers in four counties on the state's southern border sued the state in a class action on Oct. 30. The counties - Furnas, Harlan, Red Willow and Hitchcock - are on the Kansas border, and one county away from the Colorado line. They sit atop the enormous, and rapidly sinking, Ogallala Aquifer.

"The State and DNR have allowed excessive groundwater pumping to continue and by doing so it has persistently and continuously deprived the streams of the basin of surface waters," according to the complaint in Furnas County Court. "This enabled persons whose rights to water are not superior to those of plaintiffs to wrongfully appropriate water properly available to plaintiffs."

There is no question the groundwater pumping lowers the water table, and as the water table sinks, reduces water levels in rivers. Over-pumping of Western groundwater, and the devastating effects it would have, were disclosed in a prescient 1977 book by Charles Bowden, "Killing the Hidden Waters."

The Republican River has been a frequent subject of litigation, including a recent $5.5 million judgment against Nebraska at the U.S. Supreme Court. But lead plaintiff Greg Hill and his fellow farmers say their water shortage was not caused by Nebraska's fulfilling its obligations to neighboring states under the Republican River Compact, but from "excess groundwater pumping authorized and directed" by the state for the benefit of one group of farmers over another.

The Republican River Compact of 1943 allocates river water for Nebraska, Colorado, and Kansas. But a lot has changed since 1943.

"When the compact was adopted in 1943, the basin in Nebraska contained no more than 200 irrigation wells. By 1960, there were fewer than 4,000 such wells in the basin. By 2000, approximately 18,000 irrigation wells had been placed in the Nebraska portion of the basin to draw groundwater."

Facing statistics like these, there's little mystery why there's so little water to go around, even at a time when the area is relatively unaffected by drought. Only small pockets of Nebraska are experiencing severe drought, though southern Nebraska is classified as "abnormally dry" by the National Drought Mitigation Center , the least intense category of measurable drought impact.

"There is no question that Nebraska has failed to manage water in the basin acceptably," says the farmers' attorney David A. Domina, of Omaha. Domina has made a name for himself in recent years representing farmers whose land fell in the proposed path of the now-tabled Keystone XL oil pipeline.

"Anyone can see that the management has been to use emergency methods and impose the burden on surface water irrigators, while ignoring the consequences of groundwater pumping," Domina told Courthouse News.


While Hill and his fellow farmers do not own the disputed water before it is captured, but they hold appropriation rights it which are classified as property rights, according to the complaint.

They say the state allowed $143.3 million worth of water to be diverted from them for the 2014 crop year, and they seek that much in damages. The actual harm they are the proposed class suffered from the diversions is far greater, though, they say, as it consists in crops they never were able to raise.

The farmers do not challenge the state's authority to restrict water use, but say they are entitled to compensation for the water that would have filled streams and lakes had the state not intervened.

The same four farmers filed a similar lawsuit in 2014 seeking compensation for corn, soybean, and alfalfa losses in 2013. That lawsuit recently received approval from the district court in Furnas County to proceed for damages.

Kansas rejoiced in February this year when the U.S. Supreme Court ordered Nebraska to pay it $5.5 million in the fight over Republican River water.

"Legally, this is a groundbreaking case that vindicates Kansas' rights as a downstream state," Kansas Attorney General Derek Schmidt said in a statement at the time. "We brought this lawsuit to encourage our neighbors to live up to their obligations in future dry periods. I'm hopeful this strong and clear Supreme Court order will have that effect."

Nebraska officials declared it a sort of victory, as the judgment was far less than the $80 million Kansas demanded.

The judgment came because Nebraska "knowingly" used more of its share then allowed under the compact. Nebraska is allotted 49 percent of Republican River water, with 40 percent going to Kansas and 11 percent to Colorado.

Originating in Colorado, the Republican River crosses the northwestern corner of Kansas into Nebraska, then cuts back into northern Kansas, supplying a 24,900-square-mile watershed that includes numerous aquifers, streams and other waterways.

In 1998 Kansas complained directly to the Supreme Court that Nebraska had built thousands of groundwater wells connected to the Republican River Basin and unfairly depleted stream flow.

Nebraska's efforts to reduce its water use "came at a snail-like pace," and its overuse actually rose from 2003 to 2005, which should have indicated that it could not delay taking corrective action, Justice Elena Kagan wrote for the majority.

"What was too late was also too little. The water management plans finally adopted in 2005 called for only a 5 percent reduction in groundwater pumping, although no evidence suggested that would suffice. And the state had created no way to enforce even the paltry goal the plans set. The Nebraska Legislature chose to leave operational control of water use in the hands of district boards consisting primarily of irrigators, who are among the immediate beneficiaries of pumping," Kagan wrote.

In the new class action, the farmers are not relying on the Republican River Compact.

"The farmers' case turns on the state constitution, not the compact," Domina said. "If we can prove the claim that surface water was taken, compensation will follow.

"If we force recognition that surface and groundwater must be regulated together and with an even hand for uses of both, the state will not owe judgments. If the Legislature does not come to grips with this, litigation will follow and damages will have to be paid."


Just as Kansas did in the Supreme Court case, the Nebraska farmers cite groundwater irrigation pumps as the cause of water shortages.

University of Nebraska-Lincoln professor and state climatologist Al Dutcher said the state must regulate a high number of users who all require minimum amounts of water for their crops, no matter how much water is available in any given year.

"The one thing we lose track of is what the climate has been doing for the better part of 15 years," Dutcher said in an interview. A past president of the American Association of State Climatologists, he serves on the Governor's Climate Assessment Response Committee and chairs Nebraska's Water Availability Outlook Committee.

"We've seen an area of the state that's undergone a minimum of four drought episodes in recent years. Drought monitors don't always catch sharp events of high heat and short-term moisture patterns that also have a big effect. The ultimate battle is being able to determine what time period has the biggest effect on the basin."

While it's uncertain to what extent groundwater pumping contributes to drought disasters -a point of contention in the California drought as well - it's certain that farmers downstream from these major concentrations of pumps are none too happy with how efficiently groundwater pumping can deplete water supplies.

As recently as 2012 more than half of Nebraska was experiencing "exceptional drought," the highest rating possible from the National Drought Mitigation Center, a more dire situation than the region enjoys now. A coordinated effort between government agencies and conservation experts - along with a few wetter-than-normal seasons - helped improve the outlook for the time being.

Nebraska has become something of an intellectual hub for the study and monitoring of droughts, with the National Drought Mitigation Center at the University of Nebraska-Lincoln, and a special program funded by the National Oceanic and Atmospheric Administration to coordinate drought preparedness at the federal, state, and local levels.

Nebraska, in other words, is well aware of the rising concerns about climate change, despite the prevalence of climate-change-deniers among politicians in the heavily Republican state.

A recent poll published in the Lincoln Journal-Star showed that 61 percent of rural Nebraskans think "state leaders should develop a plan to reduce the impact of climate change on agriculture and rural communities." Only 17 percent disagree with the sentiment.

Clearly, if there's no usable water, there's no agriculture. But for a state whose identity is tied to the farmer ethos, climate and water preservation issues have historically been a surprisingly low priority - at least during wet years. It's uncertain, though, to what extent the severe High Plains drought of 2012 and uncertainty about climate change may be changing minds in the Legislature.

California has aggressively addressed its own drought. Gov. Jerry Brown issued mandatory water cutbacks across the state, water regulators have issued stiff fines to cheaters, local agencies have severely restricted homeowners from watering their lawns, and "drought shaming" has been invented, by citizens who photograph lush green lawns at celebrities' and wealthy people's mansions and post the photos on the Internet.

A recent study showed that land in the San Joaquin Valley, the nation's fruit basket, is sinking in some places as much as 1 foot a year due to groundwater pumping. This subsidence - a phenomenon Bowden warned of in 1977 - poses obvious problems for roads, pipelines and other infrastructure that often are thought to have little or no relation to water issues.

The study of the San Joaquin Valley, conducted by NASA with satellite imaging, raised concerns that the effects of the drought could be having dangerous consequences far beyond issues of farming and water.

"It is one of those long-term, slow and cumulative impacts," Jeanine Jones, a resource manager with the California Department of Water Resources, told the Sacramento Bee. "The thing we're especially concerned about is the long-term damage to water infrastructure. Over time, that diminishes the ability to move water."

Scientists are concerned not only that the ground is sinking, but that aquifers might be collapsing in their dry state, diminishing their ability to refill with water should abundant rains return. Normally, the land would lift when hydrated, but if the aquifer collapses underground, but that might not be the case this time.

Dutcher, the Nebraska climatologist, said agricultural regions in California and Nebraska are facing the same essential problem: "A finite water supply that won't easily regenerate. Desert conditions that accumulated water supplies over eons, not single seasons."

Even if water supplies are regenerated in the short term, there are complications such as saline intrusion, reduced water quality, and increasingly difficult extraction, Dutcher said.

As recently as 2012 some rural communities in Nebraska were precariously close to running out of water. The state was considering trucking in drinking water because all the groundwater had been pumped out for irrigation. Such drastic measures were not need - but neither should they be forgotten in any agricultural state.

"Human nature tends to focus on the short-term," Dutcher said. "We forget about the previous events."

In the short and long term, it may come down to a fight between science, politics and reality. And there's no question which of the three holds the trump card.

"The solution is a hard political load to bear," attorney Domina said. "It must be borne by someone truly interested in the future, and not political expediency."

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