Correction: It was originally stated that 23 people testified at the Public Hearing. According to UNWNRD records, 27 people testified.
By Clint Andersen
The Upper Niobrara White Natural Resources District board of directors received a tongue-lashing of epic proportions Monday afternoon in Chadron. Over 115 people gathered for the NRD’s hearing on proposed regulation of groundwater irrigation in Sheridan, Dawes, Sioux and Box Butte Counties. In a format where board members could neither ask questions of nor respond to the questions and comments from those testifying, the event was decidedly one-sided. Of the 27 people who presented testimony on the proposed regulations, 25 of them opposed some or all of the plan.
During the nearly three hours of testimony, several common themes were presented. First, the decision to implement water rationing must be based on science, not emotion or pressure from outside sources. A series of triggers must be met which they feel the data does not support. 1990 water levels are used as a base line measurement that the NRD is trying to maintain. The latest readings in three of the NRD’s six sub-districts are above that 1990 level and fail to meet the triggers.
Another common theme was that while the regulations in place for sub-districts 4 (Box Butte County) and 6 (Mirage Flats) need to continue, the remaining sub-districts should not be penalized. The directors were repeatedly accused of having the outlook of, “If I’m being regulated, everyone should be.”
Vast differences in soil types and hydrology was a hot topic as well. Many speakers noted the undeniable differences between northern Sioux County (sub-district 5), Box Butte County (sub-district 4), and the Sandhills (sub-district 3). Obvious differences in geology and hydrology dictate different irrigation practices and groundwater recharge rates in all three of these areas.
The water level in the Niobrara River was another topic of interest. Several people questioned the legal authority of the NRD to even concern itself with surface water since it is tasked purely with regulating groundwater. The testimony at one point questioned the economics of denying irrigation rights to farmers in Sioux County so someone could, “float a boat” near Valentine. Many of those from Sioux County noted that water flowing into the state via the Niobrara River has been greatly diminished by upstream irrigators in Wyoming.
Economics played a big role in many of the arguments. Joe Thompson, owner of a seed potato business in Berea, testified that these regulations could destroy the potato industry in this area. His business alone pumps $25 million dollars per year into the local economy with over $1 million of that in payroll. Andy Curd, a Dawes County rancher estimated that reduced productivity of cropland would result in a $400-$500 million impact on the area.
In addition to the farmers and ranchers who testified on the devastating effects water rationing would have on the area, businessmen that directly serve the ag community also testified. These businesses would be forced to reduce their spending and cut employees, further deepening the economic effect. However, one of the two supporters of the regulations, Patrick Peterson of Gordon, dismissed the economic effects stating that most of the money spent by local farmers and ranchers leaves the area with little benefit to the local economy. “You can’t say that just because you spent so much money in a community, the entire community benefits from that amount. Very little of that portion stays in the community,” said Peterson.
The last of the day to testify was attorney Dan Skavdahl who represents several groundwater users in the area. While the board members’ reactions to earlier testimony ranged from polite to stoic to disinterested, Mr. Skavdahl’s testimony made a profound impact on the board. The body language of the board members changed dramatically when he began speaking about the legal ramifications of these regulations. Skavdahl noted, “There doesn’t seem to be a lot of facts at hand” and reminded the board that, “You have to prove it’s in the best interest of the public.” He went on to explain the standards that a government agency is held to when making a decision. “What happens when a government agency doesn’t have competent data or sufficient data to make its decision is they get challenged. The standard is ‘arbitrary and capricious’. Did an agency act in such a manner…that would lead them to make a decision that a reasonable person would? I’ve got a little bit of case law…”. This not-so-thinly veiled threat left the board with plenty to think about.
While verbal testimony is finished, written testimony will be accepted by the Upper Niobrara White NRD until 5 PM on March 10.
You can view video of the testimony at sheridancountyjournalstar.net/videos