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Water Education Colorado

A River in Debt

By Erin McIntyre

Shutting down wells in the Republican Basin

At 67 years old, Gary Earl talks about ‘slowing down a little’ and giving dryland farming a try on some 300 acres near Wray. He's actually looking forward to it. For the first time in his farming and ranching career, he'll watch up to 3,500 gallons of water per minute from his wells go downstream, to help his neighbors keep their center pivots running and help Colorado meet its water delivery obligations to downstream states.

Earl's fields, nestled in the rolling grasslands the locals call the Sand Hills, are where Colorado, Nebraska and Kansas meet. Most people in the area rely on groundwater wells for their homes, farms and businesses, and tap into the Ogallala aquifer, also called the High Plains aquifer, a once-bountiful aquifer now plagued by pollution concerns and dropping water levels.

One of Earl's pastures borders Kansas, the state that recently settled a lawsuit with Colorado and Nebraska over neighboring states' wells depleting water from the already marginal flows of the Arikaree and Republican rivers.
Kansas originally accused Nebraska of over-pumping its wells. In 2000, Kansas and Nebraska dragged Colorado into the suit because it was party to the original compact dividing the river. A compact settlement reached in 2003 determined Colorado needed to find ways to put water back into the Republican and Arikaree rivers, and send it downstream to Kansas.

To contribute water to the Republican and Arikaree rivers, the 2004 state legislature created the Republican River Water Conservation District—a tax-funded entity designed to work with irrigators to voluntarily shut down wells. The first year, it will pay Earl $120 for each acre he does not irrigate with his three wells. If the experiment works, next year Earl will receive $150 per non-irrigated acre. Receiving a guaranteed income isn't so bad when you're in a job where you live day to day, and even on the best days you don't make much.

In fact, Earl approached the district with the offer.

‘It's a good deal for me,’ Earl says, noting he still has two other wells to water his livestock and he'll have enough water to grow feed for his cattle; he just won't have any extra feed to sell anymore.
Instead, the water from Earl's wells will contribute to the Arikaree River less than a half-mile from the stream gauge that measures Colorado's water credited to the compact.

So far the program is voluntary, with some farmers seizing the opportunity to receive compensation for poorly performing wells. Others hope shutting down for a while will increase flows enough to satisfy the compact requirements.

‘I just hope they won't come in here and say everybody's going to shut their wells down,’ Earl says. ‘I hope this works.’

Paying off the debt of water to another state is only one of the hardships communities like Wray and Yuma face. A rift between those fortunate enough to own surface-water rights and those who use groundwater is growing, fueled by decades of division and a lawsuit filed last year.

Kansas vs. Nebraska and Colorado
Kansas' lawsuit spurred experts in all three states to examine how water was being used in the Republican River Basin.
That's when Chief Deputy State Engineer Ken Knox got involved.
‘We thought there was a better way of doing this than an 18-year lawsuit,’ Knox says. ‘We're fussing over water, Kansas is saying they've been deprived of water, and we needed to find out how to measure what is going on.’
The individual states formed their own technical teams and embarked on the formation of a groundwater model, a tool used to understand the way water moves underground.

At times it was grueling. Knox compares it to President Kennedy asking NASA officials to make it to the moon on a deadline, and he's not kidding.

‘The U.S. Geological Survey had tried to do this, and they worked on it for seven years and were unsuccessful,’ he explains. ‘We did it in 14 months.’

The meeting of academia, science and bureaucrats made for an interesting sequestration.

‘Believe me, there was no lack of self-esteem,’ says Knox. ‘There was a room full of PhD's talking about high-end mathematics.’

During negotiations, he always tried to keep the individual farmers in mind—the people whose livelihoods depend on whether they can plant their fields.

‘We had to keep reminding everyone that this is not some esoteric situation,’ Knox says. ‘This is real life-and-blood type stuff.’

The groundwater model the three states agreed upon uses complicated mathematics to figure depletions from the Arikaree and Republican rivers, caused by water pumped from wells.

If left undisturbed, groundwater sits in aquifers composed of variable sands and rocks hundreds or thousands of feet below ground. While some aquifers are not connected to surface streams, others such as the High Plains aquifer are connected, and can add or subtract water from local rivers. In a system of give and take, these aquifers are then recharged by precipitation or seepage from streams. Some water also comes back to the groundwater system from irrigation return flows.

But the cause and effect of groundwater pumping is by no means straightforward. Water molecules follow a circuitous underground path and can take decades to travel from one place to another, making it difficult to track which wells are depriving a stream of its flow.

Experts used streamflow records from the 24,900-square-mile basin and water-level measurements from about 10,000 wells dating back to the 1930s to help build a database. These tools help calculate the consumptive use of a well and its effect on a stream.

Overall, experts estimate 30,000 acres of the 565,000-acre area will need to be fallowed before Colorado can live within its compact allocation. But ongoing drought and continued pumping of the 3,967 wells in the basin have kept Colorado owing water toward the compact, which has a compliance deadline of the last day of 2007.

Retiring Wells
‘We know we have to retire existing wells,’ says Knox. ‘So we're trying to identify which ones are the most advantageous to retire for compact compliance.’

In other words, experts try to determine which wells are pumping the most water that would have reached the stream if they didn't exist. Each well's proximity to the river is a clue.

Wells located nearer to the river are worth more compensation if they shut down, like Earl's well near the Arikaree River. But it's not that easy.

‘It is kind of shutting down part of the economy when you shut down a well,’ says Stan Murphy, Republican River Water Conservation District manager. The rural economy relies on everything from feed lots to fertilizer companies.
Officials are trying to keep the livelihoods of the communities in mind, said Knox. They would prefer to scatter the curtailment of wells rather than heavy-handedly shut down one area.

‘From an engineering point of view, I could target 40 wells all in the same area within a mile of the stream and it might solve our problem,’ Knox says. ‘But it would completely decimate 75 percent of the gross crop revenues in that county.’

‘We need to spread the wealth as well as spread the pain.’

For every irrigated acre in Colorado's portion of the Republican River Basin, approximately $495 is generated in economic activity for the community, said James Pritchett, an assistant professor at Colorado State University, who conducted a regional economic study to look at how money is spent inside and outside the region. The study included all of Yuma and Phillips counties, and portions of Kit Carson, Sedgwick, Lincoln, Logan and Washington counties.

He estimates only one-third of the land is suitable for dryland farming; the highest-dollar crops require irrigation. Seventy percent of the irrigated crops in the region are corn. In a region where 37 percent of the gross-domestic product comes from direct sales from farm producers, shutting down irrigated agriculture would be devastating.
Rather than descending upon the rural communities with curtailment orders, the state engineer's office decided to work with the newly formed conservation district to voluntarily shut down wells.

With federal grants to leverage the district's dollars, people who own wells located within three miles of the north and south forks of the Republican River and the Arikaree River can receive compensation for fallowing, or others within the district can receive money for converting their fields to native grasslands for 15 years.

So far, farmers have agreed to permanently retire 35 wells. One agreed to retire a well for five years, and three signed up to temporarily curtail use for three years. Those 39 wells service nearly 5,000 acres. Though these contracts were signed in 2006, some agreements will allow farmers to use wells for one last summer, said Murphy.

The district also potentially has 16 one-year leases to take wells temporarily out of use.
For some, the programs provide the opportunity to retire wells that are drying up anyway. For others, programs compensating them for well curtailment are worth more than crops.

Dennis Kaan, CSU agriculture and business management specialist, crunched the numbers to find out exactly how much profit local farmers made in 2004 raising corn in northeastern Colorado.

Figuring everything from the price of seed to diesel fuel, fertilizer and real-estate taxes, Kaan determined it costs, on average, $445 to produce an acre of corn. At $2.15 per bushel and an average yield of 215.75 bushels per acre, the farmer can sell it for $463.86 per acre. In the end, that acre of corn nets the grower a mere $18.86.

For people like Gary Earl who are close to retirement, or for those struggling financially, the opportunity to receive a steady $120 to $150 per acre seems like a good opportunity.

‘It's their chance,’ says Knox. ‘We've had people tell us that if we offered 100,000 (possible acres to lease) it would all go. We're having to put protections in place so one person doesn't come in and take it all.’

The potential one-year leases to shut down 16 wells for the 2006 irrigation season would take 1,845 acres out of irrigation, but those lands could still be dryland farmed. Participants had until mid-June to sign up for the program.
When the dust has cleared and the land is fallowed, Pritchett predicts there will be fewer farms in the region overall, but the farms will be larger because they will need more acreage to produce the same amount of crops with dryland farming than they did when they were irrigated. He believes agriculture will be economically viable in the area for at least the next 30 to 50 years, but, ‘This compact is probably the tip of the iceberg as far as the problems that will come as we deplete the Ogallala aquifer,’ Pritchett said, referring to the large underground network the irrigation wells tap into.

The Ogallala aquifer stretches under eight states, from South Dakota to Texas. According to the U.S. Geological Survey, 30 percent of the groundwater used for irrigation in the United States is pumped from the Ogallala.

Communities Torn Apart
As communities such as Wray, Laird and Beecher Island brace for the fallout from the compact settlement with Kansas and scramble to come into compliance, the rift between surface-water users and well owners has deepened.

he Pioneer Irrigation District straddles the Nebraska state line and serves irrigators in both Colorado and Nebraska. In 2005 the district, as well as all but one of the Laird Ditch owners, filed a lawsuit claiming the unchecked well pumping was depleting the stream and injuring their water rights.

Those irrigators own coveted surface-water rights dating to the late 1800s, in an area where the majority of water users rely on groundwater. They asked the Colorado Ground Water Commission to end the Northern High Plains Designated Ground Water Basin's designation, which would make all wells in the area subject to prior appropriation laws. Under state law, groundwater disputes in the designated basins are heard by the Ground Water Commission, not the water courts.

The plaintiffs were also asking the state engineer to curtail well usage and require augmentation plans for the 4,100 water supply wells in the basin, claiming that new information provided by the groundwater model in the Kansas vs. Nebraska and Colorado case proved that wells in the basin were tributary to streams.

But in a landscape where rivers are often ankle-deep to non-existent, buying surface water rights for augmentation plans could be like finding snow in the Caribbean. Anne Castle, an attorney representing Five Rivers Cattle Feeding LLC, which has 125,000 cattle, says that her client would have to shut down if the wells were declared tributary.

‘There's no augmentation water to acquire,’ she says.

The suit could have wide-reaching implications, overturning 40 years of water administration in the basin, if the basin is undesignated. The smaller groundwater management districts would not exist and the Republican River Water Conservation District would dissolve as well.

The plaintiffs also asked that two members of the Ground Water Commission be disqualified from voting, because they have personal interests at stake in the lawsuit.

At a hearing of the matter in front of the Ground Water Commission May 19, attorney Steve Bushong representing the irrigation district and the ditch company, told the commission that fellow members Grant Bledsoe and Dennis Coryell, who own wells in the basin, should be recused from the hearing since they have a vested interest in the issue.

‘It's tough to believe that resident farmers are required to be on the commission, but can be disqualified for having an interest,’ says attorney Mike Shimmin, representing the seven groundwater management districts opposing the suit. ‘Six-tenths of your voting membership would be disqualified every time’ a rule-making hearing is held.
Bledsoe and Coryell refused to recuse themselves. In the end, they ended up voting against each other.

As a result of the May 19 hearing, the commission voted 6-3 to dismiss the petitioners' request. But the fight isn't over, says Bushong. If appealed, state law will direct this case to the Yuma County District Court. The judge could make a variety of decisions ranging from upholding the commission's decision to sending the case back for more consideration.

‘We will definitely appeal,’ says Bushong. ‘We'll be looking to see if there's a way to file a writ directly in the Supreme Court.’

Bushong said there are bigger issues than just his clients' water at stake—bigger issues regarding the depletion of the Ogallala aquifer and the need to meet compact requirements.

‘We're on the verge of a train wreck,’ says Bushong. ‘Wells are pumping as if there's no tomorrow.’

Lawsuits, drought and a complex groundwater system are making it hard for Colorado to get enough water back into the Arikaree and Republican rivers. And, if Colorado does not come into compliance with the compact by the end of 2007, Kansas and Nebraska could file a new lawsuit or they could extend the deadline.

Stan Murphy, manager of the Republican River Water Conservation District said the ‘Worst-case scenario is: The order comes down from the U.S. Supreme Court-appointed special master and the state of Colorado has to come out and shut down water rights, surface rights and wells and everything, to come into compliance.’

‘As far as the compact is concerned, if we can do this voluntarily, I think we'll recover and people will be OK,’ says Kim Killin, a Republican River Water Conservation District board member who lives in Holyoke. ‘But I don't think the sting from this (lawsuit) will ever go away. It's just too long-term.’

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