Officials watch water law consequences

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BY ART HOVEY / Lincoln Journal Star

At 77, Clayton Lukow can remember watching his father lose his corn crop west of Hastings to the 1934 drought. In a state that had yet to discover the depths of its irrigation riches, the corn withered and turned white, a complete crop failure, at 2 feet tall.

   "All that time," Lukow said softly from behind the desk of his basement farm office near Holstein, "there was water under his land that could have alleviated his pain and distress - and he couldn't access it."

   Seven decades later, Lukow's body battles with cancer. His mind shifts with the times.

   He is now among those Nebraskans who believe parts of the state may be drifting dangerously close to the other irrigation extreme.

   Especially in central and western areas, rivers, streams and reservoirs are depleted by drought and heavy irrigation pumping. Groundwater levels are receding, a little in some areas, a lot in others - down more than 50 feet in some parts of the state that rely heavily on groundwater for irrigation.

   In 2004, the Nebraska Legislature waded into these troubled waters with LB962, a sweeping change in water policy that consumes almost 200 pages. The law gives state and local government new authority to manage groundwater and surface water as one resource. More importantly, for the first time, LB962 allows the Nebraska Department of Natural Resources to declare portions of the state's river basins fully appropriated or overappropriated.

   Fully appropriated means water demand equals water supply. Overappropriated means demand exceeds sustainable supply and that something must be done to restore equilibrium.

   Lukow, who helped craft LB962 as a member of the Governor's Water Policy Task Force, believes in the basics of this conservation mission.

   "It's a recognition of what water has done for me," he said, "and a recognition that my son, his children and grandchildren have the same opportunity that I have had."

   But LB962 is making waves.

   In practical terms, it gives the state the authority to stop the drilling of new wells for both irrigation and municipal use.

   It also allows state regulators to intrude on groundwater turf that had been left to the 23 natural resources districts and their locally elected boards of directors.

   In a broader sense, LB962 has a chilling effect on irrigation growth that has turned Nebraska into one of the nation's most prominent corn-growing and cattle-feeding states. With 7.6 million acres under irrigation, Nebraska is second only to California in the number of irrigated acres of crop ground. Steady growth in watered acres has also made Nebraska the home of the world's largest manufacturers of center-pivot irrigation systems.

   What would Lukow say now to those who want to drill more wells in areas placed off limits by the state?

   "You're stuck," he said. "And you should be. Because to do otherwise compounds the problem."

   Forty miles away at Kearney, fellow irrigator and fellow task force member Dick Mercer shares Lukow's belief that it's time to take a step back from aggressive irrigation development.

   Mercer demonstrated his commitment to that task before stepping down as a member of the board of the Grand Island-based Central Platte Natural Resources District. In late 2003, he voted for a moratorium on drilling new wells.

   As he prepared to cast his vote, he looked at drought, at the huge investment in irrigation equipment already in place and at what that means to people who can't raise corn most of the time without supplemental moisture.

   With all that taken into account, Mercer says, "It's time to take a recess, or a timeout, and take a look at the situation to see if we could continue unrestricted irrigation development."

   A year and a half after the pivotal NRD vote, he glances toward son Steve, 54, who's busy with computer chores in the family's cattle-feedlot office just north of Kearney's Gateway Arch.

   "All he ever heard is that Nebraska has an unlimited supply of irrigation water," the elder Mercer says.

   That was until drought and growing numbers of irrigation wells conveyed a more conservative message.

   "We just cannot go, unabated, and poke holes, poke holes, poke holes," he says.

   ***

   The 49-member task force that did most of the detail work on LB962 never voted on the final result.

   The idea of their consensus approach was to stay at the negotiating table until representatives drawn mostly from natural resources districts, the public power and irrigation sectors, municipalities, general agriculture and environmental ranks felt satisfied they had gone as far as they could go.

   Despite the ultimate consensus among competing groups on the task force, Don Adams and Nelson Tramblay are among those who think they went too far. Others, including Steve Huggenberger, think they didn't go far enough.

   "We were the only ag producers group that opposed 962," said Adams, executive director of Nebraskans First, a watchdog group made up of groundwater irrigators.

   "And we opposed it because we believe that NRDs, under existing law, had the powers they needed to regulate groundwater - and they were doing it," said Adams. "What 962 does is shift power away from the NRDs and vest more control in the Department of Natural Resources."

   Tramblay, 60, looks at LB962 from several vantage points.

   He's an irrigating farmer from south of Minden and Hastings near the Kansas border. He's a member of the Alma-based Lower Republican Natural Resources District. He's an at-large member of the governor's task force. And he's a member of Nebraskans First.

   "I'm not real comfortable with it," he said. "It might be the best thing for the state. But it's not the best thing for the farmer or for the economies of small areas."

   Tramblay lives in one of the areas already designated as fully appropriated for irrigation purposes. It is also in the Republican River Valley, where irrigation inclinations are now limited by the terms of an agreement with Kansas that preserves surface flows at the border.

   "The problem is we're sitting down here with a water table that is not declining at a very high rate," he said, "and the problem is that, when we allocate water to people who've got plenty of water in their well, it doesn't really make a lot of sense."

   Tramblay's complaints come under circumstances in which agriculture accounts for 95 percent of all water used in the state. They arise from a dialogue in which half of the 49 people on the task force directly represented either agriculture or irrigation.

   Municipalities, which represent a much larger population, got five seats.

   Huggenberger, an assistant city attorney in Lincoln, holds one of them. Asked if municipalities get a fair hearing from the rest of the group, he replied:"No, but we went into this knowing that the task force was stacked with irrigators, whether they were surface water or groundwater."

   Under those circumstances, he said, "We were not going to get what we wanted unless we wanted to block consensus of the whole thing."

   One of the entries on Lincoln's unmet wish list, Huggenberger said, is the ability to do permanent water transfers, or buy a water right upstream and to be assured that amount of water would be left in the Platte for the Ashland-area wells that serve Lincoln's water needs.

   "We need permanent transfers," he said, "and 962 doesn't do that."

   If the Platte goes dry, he said, there is no alternative. "We have to shut people off."

   Huggenberger is not happy either with a situation in which municipalities need NRD approval to expand their water-resource base.

   This spring, a bill that would have exempted municipalities from well-drilling restrictions fell by the wayside in the Legislature.

   "There is certainly some uneasiness among municipalities about having to go to NRDs and having to genuflect before NRDs to solve our problems," Huggenberger said. "We don't like being at their mercy, at the kindness of strangers. We're dependent on that if NRDs are going to be in control."

   Of course, many in NRD ranks hold another view of their new obligation to share groundwater authority with the state.

   Mike Clements, general manager of the Lower Republican NRD, said its board of directors has no plans to extend allocation rules that will be in place for farmers this year to Superior, Alma and other city water users within district boundaries.

   Clements called that decision as "an attempt not to stir the pot and not to be accused of halting growth or halting expansion of industry."

   Even when NRDs treat industries with deference, some could be hurt by the current thrust of LB962.

   They include T&L Irrigation in Hastings and three other prominent, Nebraska-based manufacturers that sell of center-pivot irrigation units all over the world.

   Dave Thom of T&L is quick to point out that most of Nebraska still shows no evidence of declines in groundwater levels from 50 years ago.

   "It's a very sad day when you have to put a moratorium in," Thom said. "And it's a doubly sad day when you do it when you don't have to do it."

   ***

   Rising City farmer Gene Glock is a few years younger than Clayton Lukow, but not too young for the images ingrained on the memory of virtually every Nebraskan who lived in the 1930s.

   "In 1936," Glock said, "we ate our corn crop - my dad and my mom and my brother and I."

   The few stalks that produced edible ears that year on the Glock farm sprung up in a wetter spot along a fence line.

   Glock will never forget what he and his family experienced without the benefit of irrigation when he was 4. Yet he agrees with Mercer and Lukow on the need to more carefully manage water resources.

   "As things have developed, we don't want to see this state down the road if we can't irrigate," he said. "Can you imagine the economic devastation?"

   As one of 49 people who met to wall off devastation, Glock believes LB962 starts the state toward long-term water security.

   "I would have to say I, myself, am amazed we were able to do what we did."

   Reach Art Hovey at (402) 523-4949 or ahovey@alltel.net.

About this series

   "Platte River Odyssey" is a collaboration between the Lincoln Journal Star and the University of Nebraska-Lincoln College of Journalism and Mass Communications. In the coming months, this series will deal with many themes related to the Platte River basin. They include:

   * Big Mac dries up

   * The economics of irrigation

   * History of irrigation in the Platte Valley

   * Litigation over water in the Platte basin

   * The Platte Metroplex-Lincoln and Omaha rely on the Platte

   * Recreation on the Platte