Irrigation Empire: Rolling back years of growth in pumping groundwater
BY DAVID HENDEE
Lincoln - Nowhere in America is there a freshwater sea as large as the aquifer under Nebraska. Nowhere in America is more water pumped from the ground for crops than in Nebraska. And no other Western state has waited until now to slow the drought-driven push by irrigation farmers - a tiny fraction of Nebraskans - to overuse groundwater.
As a result, significant declines plague parts of Nebraska, rivers are being sapped, mighty Lake McConaughy is shrinking, and now all the state's taxpayers are being presented with a multimillion-dollar repair bill.
It was the year before Pearl Harbor when the Nebraska Supreme Court pointed out that the Legislature had legal gaps in groundwater regulation - gaps that later allowed this unregulated growth.
The Legislature dallied for more than six decades before taking aggressive action.
Meanwhile, irrigators exploited the commonly owned aquifers under a system that rewarded those with the deepest wells.
Nebraska waited so long that it faces a costly, painful process of rolling back water use where it exceeds natural or legal limits.
The sting and expense once were avoidable. Now they're not.
Gov. Dave Heineman wants to create a $128 million cash fund to address the state's water challenges. Lawmakers are considering a halt to new irrigation wells statewide and paying landowners to reduce irrigation.
The water exploitation evolved under the watch of influential farmers in the Legislature with a self-interest in promoting the rural economy.
Traditions made inaction easy. Nebraska has a history of rural independence. The state constitution gives farmers reasonable use of water under their land. Timely wet years and confidence about the state's groundwater wealth lulled farmers and legislators into complacency.
Indeed, Nebraskans have barely tapped the High Plains Aquifer, an eight-state system of underground water. But what irrigators take off the top often depletes rivers, streams and reservoirs - and that drives the current crisis. If nothing were done, isolated pockets of Nebraska could mirror parts of Kansas and Texas where it's too expensive or impossible to drill deep enough to reach the water.
Nebraska's estimated 17,000 irrigated farms represent a third of its total farms. They irrigate roughly 43 percent of the state's harvested cropland, watering corn, soybeans, wheat, sugar beets, potatoes, dry edible beans, alfalfa and other crops.
Irrigators make up only about 1 percent of the state's population but use about 94 percent of its groundwater and two-thirds of all its water each year.
Irrigators range from mom and pop farms, whose operators pump one well and work in town to pay the bills, to megafarms with dozens of wells, whose owners are among the farming elite. The state's average irrigated farm has 462 irrigated acres.
But others also want water: growing cities, the ethanol industry, recreation and wildlife.
Lawmakers put off action for decades, despite court urgings, conflicts among water users, significant shortages plaguing other High Plains Aquifer states and mounting scientific evidence that groundwater use often affects surface water levels.
Until the most recent drought, which began in 1999, the Legislature rarely displayed urgency to regulate groundwater.
In 1940, the Nebraska Supreme Court noted that 500 irrigation pumps in Dawson County created huge losses of flowing water in the Platte River.
In 1994, the court explicitly said in a Platte River case: "It is to the Legislature that Wyoming must direct its argument regarding future groundwater depletion."
But it wasn't until 2004 that Nebraska passed a significant law, Legislative Bill 962, creating a proactive approach involving both local and state agencies to resolve long-standing water issues.
Even in 2005, the court, in a case involving the Spear T Ranch near Bridgeport, noted legal confusion for dealing with groundwater and surface water.
"Ideally, the Legislature would develop a comprehensive administrative appropriation system . . . to adjudicate direct conflicts between groundwater and surface water users in Nebraska. This would be consistent with how most legislatures in Western states have addressed conflicts between water users," the court said.
The reason for inaction is clear, said Michael Klein, a Holdrege attorney who represents the state's largest irrigation district and its surface water users.
"The Legislature has only in small ways come to grips with the unsustainable use of the resource," Klein said. "You can speculate all day, but it's pretty clear that the reason they didn't is pure politics."
Irrigation has made thousands of square miles of this semi-arid state landscape more productive, bringing prosperity to irrigators and their communities and making Nebraska the world's center-pivot equipment capital.
Nearly 8 million acres of groundwater-irrigated cropland create a big political hurdle, Klein said, when lawmakers ponder bills perceived to regulate or restrict groundwater use.
Paul Hutchison, who has three pivots on his farm west of Sidney, said farsighted laws a few decades ago would have prevented obvious damage that groundwater irrigators did to aquifers.
"But . . . they weren't breaking the law," he said. "If LB 962 had been in effect 30 years ago, then there could have been something done."
Self-interest kept the Legislature from taking bolder steps during the boom years, said former State Sen. Loran Schmit of Bellwood, an irrigator.
"Who lobbied? Those of us who had (irrigation) interests - we understood the interests," he said.
David Aiken, a University of Nebraska-Lincoln water law expert, pointed to the belief among the state's movers and shakers in the supremacy of irrigation.
"When push came to shove, irrigation was No. 1, and we couldn't do anything to get in the way of groundwater irrigation because that was Nebraska's future," Aiken said.
Former State Sen. Ed Schrock of Elm Creek, a farmer who helped push through LB 962, said he understood his predecessors' hesitancy to act.
Nebraska has the continent's largest and deepest pool of accessible groundwater.
"It was a resource that we thought was inexhaustible," he said. "And Nebraskans are pretty independent-minded people. We don't like regulations."
Irrigation was a moral crusade for senators who lived through the Dust Bowl.
The late State Sen. Maurice Kremer, an Aurora farmer, once told Schmit the 1930s drought motivated his work to develop water for irrigation.
"He'd come in from the field and lift his baby son from the crib and find that so much fine dust had filtered into the house that he could see the outline of the baby on the sheet where it was lying," Schmit said.
"Maury Kremer's interest in irrigation was created by that gut experience."
As early as 1940, shortly after the Dust Bowl ended and when irrigation was in its infancy, Nebraskans were warned about future water conflicts and shortages and heard calls for state control of the resource.
John C. Page, a native of Nebraska who directed the U.S. Bureau of Reclamation, warned Nebraskans that unregulated groundwater use could cause declining water tables and weaken rural communities.
The state has managed surface water since 1895. But across most of Nebraska, throughout the 20th century, groundwater pumping was guided only by individual decisions.
Not until 1957 did the Legislature pass its first law regulating groundwater - and that simply required registering and spacing wells and set preferences for using groundwater.
As irrigation boomed in the 1960s and 1970s, awareness and research grew about how groundwater pumping can sap streams and rivers. Nebraska water law wasn't ready for the resulting number of conflicts among water users.
Kremer and other irrigators were creating what he called "a new Nebraska" of prosperity. But he also acknowledged during that period that "maybe we've gone too far."
Kremer joined the Legislature in 1963, the year water-law experts warned of the danger of shrinking aquifers contributing less water to the stream flows. The experts predicted an inevitable collision between groundwater and surface water irrigators.
Kremer was a father of the state's natural resources districts. They were formed in 1972 to consolidate 154 tiny resource and conservation districts into about two dozen larger agencies to manage soil and groundwater.
Over the next three decades, the Legislature limited the districts' authority to manage groundwater, doling it out piecemeal.
For example, the Legislature, led by Kremer, passed its first groundwater law in 1975. The law authorized the NRDs to propose restrictions on irrigators who were mining water - drawing more from the ground than annual precipitation could restore.
But such restrictions required approval by state water managers and were rarely imposed.
Meanwhile, the pressure to irrigate was great. Soviet Union grain purchases, which began in 1971, depleted U.S. reserves.
Grain prices soared. Farmers with center-pivot irrigation watched their land values leap from a few hundred dollars an acre to $2,000 to $3,000 an acre.
Irrigated agriculture ensured the ranking of lightly populated Nebraska as a leading agribusiness state. Cash receipts from farm marketing contribute about $12 billion a year to Nebraska's economy. Farmers pay hundreds of millions of dollars in property taxes.
By the mid-1980s, science-based information about the connection between groundwater and surface water was widespread, water tables were falling and rivers were vanishing.
But groundwater was the heavyweight champion in state water politics, UNL's Aiken said.
That's where the money was, he said. "Any farmer worth his salt had an irrigation well."
Among farmers, he said, "irrigators were the leadership. You didn't want to mess with them."
When Schmit joined the Legislature in 1969, rural senators needed little help from urban colleagues to ensure a majority of votes on water issues. Of the 49 members, 24 were farmers, ranchers, or irrigation and grain company managers.
When Schmit left in 1993, the number of ag senators had dwindled to 15, and new voices were heard.
Key among them was Chris Beutler of Lincoln, who became chairman of the Natural Resources Committee in 1993. Beutler questioned the wisdom of unfettered groundwater development.
Rural Nebraskans branded him Public Enemy No. 1.
He worked to address the predictable deterioration of water quantity and quality that followed drilling booms in some areas.
One of his biggest water policy successes was LB 108, approved in 1996 over well-organized irrigator opposition. LB 108 turned Nebraska water law on its head by recognizing the connection between surface water and groundwater.
But the law was cumbersome and poorly funded.
Most of his attempts at legislative changes failed. Beutler left the resources committee in 1999, frustrated with the apathy of most urban senators over water issues. And few rural senators, he said, understood the big picture of water policy.
"They are tenacious," he said. "Their key belief is that water needs to be protected for agriculture at all costs."
Klein, the Holdrege attorney, said it remains difficult for lawmakers to tackle water issues because their actions would affect more than just irrigators.
Each irrigation well plugs into an economic infrastructure of Main Street businesses that sell seed, pesticide, fertilizer, fuel and machinery to grow, harvest and market the crop.
"The greater the economic productivity based on irrigation, the more difficult it is for politicians to come to grips with the reality that we have unsustainable (water) use. The demand exceeds the supply," he said.
"It's easy for the Legislature to sit and do nothing. It's a tough political problem."
Beutler said legislators should have reined in unregulated irrigation development in the 1970s, before it put aquifers at risk.
Now some farmers with irrigation wells are paid tax dollars not to irrigate, as part of a solution to prevent falling water tables and dwindling rivers.
"It makes me sick," he said. "The Legislature let it happen."