River issues update

NWU Radio Script

3-12-01

Copyright

Three of Nebraska's rivers are making the headlines this year as all are being impacted by major water issues.

Nebraska Department of Natural Resources director Roger Patterson provided an update on what's happening on the Platte, Republican and Missouri Rivers for those attending the 13^th annual Governor's Ag Conference in Kearney last week.

Foremost on the radar screen is the Nebraska vs. Wyoming lawsuit which has been in negotiations since last May. The case was filed in 1986 when Nebraska alleged Wyoming's over use of water in violation of the 1945 North Platte Decree.

The case has cost more than $20 million and was set to go to trial last May when the two states reached a tentative settlement. Negotiations on that settlement have been intense and on-going throughout the past 10 months, said Patterson.

Last Tuesday Gov. Mike Johanns announced that the two states had reached an agreement and Thursday more details were announced. One of the key provisions of the settlement is creation of a group with representatives from both states that will monitor water use and adherence to the decree.

Work continues on the Cooperative Agreement signed in July 1997. The agreement notes that Colorado, Nebraska, Wyoming and the U.S. Department of Interior would work on a program of recovery for endangered species in the Central Platte that would still allow water-related activities to proceed.

Patterson notes this has been a major undertaking, but is complimentary toward the role Nebraska has taken during the program development. "We at least have a say and place at the table," he said.

The first phase of the program is to take 10-13 years and includes acquiring through lease, easement or purchase 10,000 acres of suitable habitat. In addition, the three states need to come up with an additional 130,000 to 150,000 acre feet of water annually.

Such a program doesn't come cheap, said Patterson and already the $75 million estimate for first phase costs has been doubled to $150 million.

Recently a number of concerns have been expressed with this proposal by Department of Interior agencies. Modeling by the U.S. Fish and Wildlife Service questions whether the impact of sediment with increased flows in the river would be more detrimental than originally thought.

"The state's view is we're not going to pay for the river to undercut and decrease, not improve, habitat," said Patterson.

Discussions and planning will continue as the Cooperative Agreement was extended to June 30, 2003.

On the Republican there have been some interesting developments in the Kansas vs. Nebraska lawsuit accepted by the U.S. Supreme Court in 1999. In the lawsuit Kansas alleges overuse of water by Nebraska stemming from a 1943 compact.

In this lawsuit the Special Master appointed by the Supreme Court really wants to move the case along, said Patterson, with the trial set to begin in March 2003. "When you compare this to the 14 years it took for Nebraska vs. Wyoming to reach a trial date you can see how fast he wants to move," said the DNR director.

A major allegation by Kansas is that through groundwater use Nebraska is violating the compact. Nebraska's contention is the state is not.

Whether groundwater can be counted as a January 2001 report seemed to indicate was muddied by a February 2001 Memorandum of Decision by the Special Master that noted the Republican River Compact Administration numbers for 1959-94 are binding. This would indicate groundwater impact is not to be considered.

Two other points in that memorandum note that no state is entitled to consume unused allocations of another state and a complaining state need not show injury to obtain prospective relief. Both keep the balls bouncing back and forth between Nebraska and Kansas.

Finally Patterson took a look at what is happening on the Missouri River. A 1980s drought led to an Army Corps of Engineers decision to rewrite the Master Manual, which sets up river operations from the mouth of the Missouri to it's confluence with the Mississippi.

A controversial matter, the states along the Missouri finally made their recommendations to the Corps in Sept. 1999. At that point the Fish and Wildlife Service stepped in with a disagreement over Endangered Species Act issues. This in turn has led to increasing tensions between the upper and lower Missouri basins and there is no end in sight, said Patterson.

The latest news is the American Rivers organization has given their 60-day notice of intent to sue for failure to implement a plan.

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