Saturday, November 22, 2008

By LORI POTTER
Hub Staff Writer

KEARNEY - Key legal decisions for the future of Republican Basin water management won't be made until 2009.

Assistant Attorney General Justin Lavene said he hopes an arbitration process to address disputes between Kansas and Nebraska over Republican River Compact compliance might be done by mid-2009.

Meanwhile, oral arguments haven't yet been scheduled by the Nebraska Supreme Court in a lawsuit challenging a property tax authority given to the Upper, Middle and Lower Republican natural resources districts in 2007 by LB701.

Lavene updated NRD officials on those legal issues Tuesday at a Republican Basin meeting at the Nebraska Association of Natural Resources Districts annual conference in Kearney.

The Republican River Compact arbitration process is part of the settlement agreement for the Kansas v. Nebraska lawsuit. Arbitration is required before the lawsuit could be returned to the U.S. Supreme Court.
Lavene said officials of the compact states - Colorado is the third party - are completing their selection of an arbitrator, arbitration issues and procedures.

The disagreements focus on water accounting. Kansas officials say Nebraska overused its compact allocation in 2005 and 2006 in violation of the settlement agreement.

Meanwhile, the state lawsuit challenges the taxing authority in LB701 that was part of the NRDs' plans to pay $8.5 million for water purchased from irrigation districts to enhance streamflows to Kansas. The NRDs wanted to issue bonds and repay that 2007 debt with LB701's special property tax levy of up to 10 cents per $100 valuation, occupation tax of up to $10 per irrigated acre or a combination of the two.

The payment plan was placed on hold when some Republican Basin landowners filed a lawsuit. They said LB701 violates the state constitution by allowing a local entity to collect property taxes for a state function, interstate compact compliance.

Proponents of LB701 say the levy is assessed by a local government for a substantially local purpose.
The Legislature approved a 2008 bill that allowed the NRDs to borrow state money to pay the irrigation districts and then repay the state after the lawsuit is settled.

The Lower and Middle Republican NRDs have suspended collections of their 701-related property and occupation taxes this year. The Upper Republican NRD is collecting only a $4 per acre occupation tax.
NRD managers said Tuesday their goals won't change as they await the legal decisions. "Nothing changes," said the Middle Republican's Dan Smith of Curtis. "It (the focus) will be compact compliance. That will always be the issue."

He believes Nebraska now has measures in place to sustain compliance in years with normal precipitation. "It's all a function of weather. It always has been ...," he said. "If we can maintain anything near normal (precipitation), we're there."

At the basin meeting, Smith reported that the MRNRD board tentatively approved a new $350,000 program to retire more irrigated acres. "We're seeking bids. It's essentially how much do you want to permanently retire x-number of acres?" he said.

Lower Republican NRD Manager Mike Clements of Alma said he'd hoped the LB701 lawsuit would have moved faster. As for the Kansas v. Nebraska arbitration, "Who knows what's going to come out of that process?"

Clements' basin meeting report highlighted data showing that average irrigation use in recent years was below allocations and static groundwater levels have rebounded. He said the basin has a $514,500 grant to start the engineering phase of a proposed project to use groundwater to augment river flows to Kansas.
"We need to not let our guard down and do a lot with the good programs we have in place," Clements said. "And continue to pray for Mother Nature to be kind to us."

She was so kind in the past year that Harlan County Lake was 100 percent full and at 128 percent of average at the end of August, according to a U.S. Bureau of Reclamation report.

Clements said it was remarkable to see a reservoir that had been severely drought depleted for years full at the end of an irrigation season. He said U.S. Army Corps of Engineers officials likely will make some winter water releases because of concerns about erosion with the higher lake levels.

"It's all counted" toward compact compliance, Clements said about the releases, and more water will get to the state line because of work the past two years to remove invasive vegetation from the river channel.