Frenchman Cambridge Irrig Dist -- Dave Domina Dec. 2013 3 Reservoirs - 143,000 AF of Irrigation Water 4 Canal Systems 156 miles - Main Canal 112 miles of Buried Pipe Laterals 157 miles -- Surface and Sub-surface Drains 45,669 Acres Served Total Diversion Capacity - 829 cfs
Discussion Areas Past – Prologue or Map? How Did the Current History Problems Occur? Legal Setting What is The Legal Setting? Needs Identification What Needs Remediation? Past Efforts What Has FCID Tried? Possibilities What Might be Do-Able? Recommendations What is the Best Course?
History: How Problem Occurred. The Basin’s Water Belongs to the People
How Big Is the Basin?
Legal Setting: Basin Must Fill 3 Needs Neb Const Art XV Residential Agricultural Industrial
The Compact Controls The River The Court Controls the Compact Comity and Deference are Issues Federal Reluctance State’s Peripatetic Water Policy -- Current Administration Only -- Pump in the Southwest -- Do Not Conserve Naturally -- “Retime” Nature
The Compact – Art. III: Average Annual Virgin Supply for Allocation North Fork of the Republican River in Colorado 44,700 acre-feet Arikaree River basin 19,610 acre-feet Buffalo Creek basin 7,890 acre-feet Rock Creek basin 11,000 acre-feet South Fork Republican River basin 57,200 acre-feet Frenchman Creek (River) basin in NE 98,500 acre-feet Blackwood Creek basin 6,800 acre-feet Driftwood Creek basin 7,300 acre-feet Red Willow Creek basin in NE 21,900 acre-feet Medicine Creek basin 50,800 acre-feet Beaver Creek basin 16,500 acre-feet Sappa Creek basin 21,400 acre-feet Prairie Dog Creek basin 27,600 acre-feet North Fork Republican River in NE… main stem to the NE-KA state line 87,700 acre-feet
The Compact Art IV: The Nebraska Allocation: 234,500 acf North Fork Republican River in in CO 11,000 acre-feet Frenchman Creek basin in NE 52,800 acre-feet Rock Creek basin 4,400 acre-feet Arikaree River basin 3,300 acre-feet Buffalo Creek basin, 2,600 acre-feet South Fork Republican River 800 acre-feet Driftwood Creek basin 1,200 acre-feet Red Willow Creek basin in NE 4,200 acre-feet Medicine Creek basin 4,600 acre-feet Beaver Creek basin 6,700 acre-feet Sappa Creek basin 8,800 acre-feet Prairie Dog Creek basin 2,100 acre-feet North Fork Republican River in NE… main stem to the NE-KA line 132,000 acre-feet
What Needs Remediation? The Law Has Limits. It cannot create, but can destroy, water. It cannot retime nature for long. It cannot prevail with a false assumption. It cannot govern from a false premise. The Law Needs Remediation.
Basic Rules of Hydrology & Law Consumption Ultimately Respects Natural Hydrology. Consumption Cannot Make Up for Natural Aridity. River Flow Cannot Be Depleted w/o Present Harm. Groundwater Cannot Be Depleted w/o Future Harm. Lawful Users Must All Be Respected… in •Constitutional Order: Domestic, Irrigation, Industrial. • Irrigators Must Be Respected in Legal Priority. Basic Rules Need Remediation
FCID Surface Water Priority Rights 1895 Predate Republican River Compact Predate Most Irrigation Wells Predate NRDs Predate NE Groundwater Mgmt Act FCID Surface Water Rights Need Remediation
Priority User Rights The Law Made A Dramatic Change Landowner entitled to waters under land, but not in excess of reasonable & beneficial use upon land he owns . Olson v City of Wahoo , 124 Neb 802 (1933). Landowner entitled to waters under land subject to GWMPA. GWMPA (1975) 23 NRDs to manage groundwater. NDNR to manage surface water. The Constitution Did Not Change
NE Constitution Did Not Change “…[t]he use of the water of every natural stream within the State of Nebraska is hereby dedicated to the people of the state for beneficial purposes.” Neb Const Art XV, Sec 5. “…[t]he right to divert unappropriated waters of every natural stream for beneficial use shall never be denied except when such denial is demanded by the public interest.” Neb Const Art XV, Sec 6.
Priority User Rights FCID serve 45,669 acres Total canal diversion capacity = 829 cfs Natural Flow Permits granted =512 cfs (priority dates 1890 to 1987) Storage user permits for 143,000 A.F. (Full supply= 14 in / ac) 2012 Water toll = $33.00 / acre for 8 inches 2013 Water Toll = $49.50 / acre-foot + $10/acre Meeker Driftwood Canal – allocated 1.5 in/ac Cambridge Canal= allocated 2 in/ac Bartley & Red Willow = 0 inches Add $10.00 / ac occupation tax for NRD Groundwater Programs
Priority Water User Rights Right to Farm with Water First. Right to Fulfill Reclamation Laws’ First. Right to Economic Benefits of First Water Consumption Options. Right to Compensation If Water Taken for Lower Priority User or Use
What Has Been Tried? Lower NRD cannot Sue Upper for Overuse. Central NE PP & Irrig Dist v No Platte NRD, 280 Neb 533 (2010)(standing). FCID Cannot Sue DNR to Challenge Order. FCID v DNR, 281 Neb 992 (2011). Threatened Injury Insufficient to Create Standing. In Re Application A-18503, 286 Neb 611 (2013)(Middle Niob NRD v DNR & NPPD challenge to application for appropriation of more Niobrara River surface water.) FCID Cannot Sue U S Dept of Interior or NRDs In Federal Court . FCID v Salazar et al, 12-445 (US Dist Ct NE)(federal immunity; state comity)
What Might Be Do-Able? FCID Can Aid And Assist Water Users FCID Can Serve as Clearing House for Individuals FCID Can Use Voluntary Collection Authority FCID Can Seek Statewide Support FCID Can Compensate Professionals With Water User Assent.
What Might Be Do-Able? Individual Water Users Can Challenge DNR Orders Sue for Just Compensation for Water Use Taken… Not for Water Taken. Sue for Declaratory Judgment Under Individual Water Rights. Sue for Declaratory Judgment with FCID Under Priority Water Rights
What Might Be Do-Able? Suit by / for Group(s) for Just Compensation Annual Takings of Water State: “We have a right to take it; it is ours!” Priority Holder Harmed: “We have a right to Compensation for your Taking!”
What Might be Do-Able? Individual Administrative Proceedings Water Review Board Agency Proceedings Individual Suits Against Water Usurpers Individual Suits: Declaration of Priority Rights Individual Suits: Injunctions Against Usurpers
Intermission Part Two FCID Water Users Only Signers of Confidentiality Pledge Only Persons Interested in Working Together Only Invited. Pledge at Door…Serious Matter.
All Water on Earth …into an 860 Mi Sphere http://ga.water.usgs.gov/edu/earthhowmuch.html .
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