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Omaha Magazine

Come Hell or High Water

Feb 24, 2023 10:13AM ● By Julius Fredrick
Cozad, Nebraska, Cattleman Howard “Howdy” Benjamin

Photo by Bill Sitzmann.

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Clouds of algae drift on warm currents, blotting the tides a turquoise blue. Schooling fish meander in the wake, enticed by the abundance of food. Beneath the surface, spears of sunlight grow dull with depth; untouched by silhouette, something stirs. Bubbles rise from the dim, fluttering past fins, scales, and glossy eyes. A shark glides into view—broad tale strokes quickening, the slow arc of its approach honed by churning water and widening jaws. Eyes rolling, the shark lunges; jerked bodily by instinct, it misses. Eddies of blood and foam swirl as the fish, including the shark, scatter—all but one, pinned and gasping between rows of conical teeth.Lying in ambush, a 30-foot-long marine reptile, a plesiosaur, has poached the shark’s kill. Swallowing the spoils whole, it dives…resurfacing among the arid hills of the Santee Sioux Reservation in Knox County, Nebraska, some 70 million years later. 

Discovered in 2003 by amateur paleontologist Mike Baldwin, the “Baldwin plesiosaur” constitutes a landmark find, painting a clearer picture of a huge expanse of sea—the Western Interior Seaway—that once engulfed most of the state.

While Nebraska hasn’t sustained a marine ecosystem since the Mesozoic Era, such prehistoric drama still carries insight for the state’s modern inhabitants. For instance, the deep gorges and ravines carved by the Western Interior Seaway determined the course of ancient rivers, which in turn carried runoff from the upheaval of the Rockies—forming the bedrock and porous ‘saturation zone’ of the region’s most prized natural resource, the Ogallala (or High Plains) Aquifer.

Another reflection: during the late Cretaceous Period, Nebraska absorbed approximately 100 inches of rainfall annually; in drought-stricken 2022, precipitation barely averaged 17 inches statewide, marking the fourth lowest on record. 

Perhaps most importantly, however, this scene renders a stark, primeval truth: that for time immemorial, scarcity invariably leads to conflict.  

Digging Trenches

“Colorado is looking to take our water,” declared then Nebraska Governor Pete Ricketts during a legislative hearing last February, the chamber echoing with grave indignation. “If we don’t protect our water, we are undermining the very foundation of what our state economy is.”

At the time, Ricketts was drumming up support for LB 1015—a $500 million proposal to construct a canal one mile west of Ovid, Colorado, for funneling water into Nebraska during the crop irrigation offseason. Ricketts alleged Colorado’s explosive population growth, combined with the tenuous output of the Colorado River Basin, have the Centennial State scrambling to secure water from alternative sources, including those shared by the states.

Ricketts pointed to research authorized by the Colorado legislature in 2016, titled the “South Platte River Storage Study,” and the Nebraska Department of Natural Resources’ scathing summary of its findings: “Colorado’s apparent interpretation of the Compact, is that without the Perkins County Canal, Colorado is allowed to reduce the South Platte River flows by approximately 90%.”

The clause referenced, and the legal lynchpin for what’s been dubbed the “Perkins County Canal Project,” lies earmarked in a century-old agreement between the governments, Article VI of the South Platte River Compact:

“[…]proposed canal shall be entitled to direct five hundred cubic feet [cfs] of water per second time from the flow of the river in the Lower Section[.]”

Since 1923, the Perkins County Canal has remained largely hypothetical beyond the determined, but ultimately doomed, construction effort that prompted its inclusion to begin with. That was until Nebraska officials learned their co-signatories had deemed South Platte flows “in excess of the minimum legally required amounts” owed to Nebraska—Colorado showing little interest in diverting 500 cubic feet per second to a canal that, to be fair, doesn’t exist.

In response to Nebraska dusting off the 100-year-old treaty, Colorado Governor Jared Polis dismissed Nebraska’s action as “a misguided political stunt,” and warned he would “protect and aggressively assert” Colorado’s water rights.

Undeterred, 42 of the unicameral’s 49 delegates endorsed the bill in April 2022—likely emboldened by “reconnaissance-level analysis” from development agency ERA Economics, which appraised the Perkins Canal (and adjoining storage facilities) capable of injecting a net present value (NPV) of up to $1.81 billion to Nebraska’s economy over a 50-year horizon. However, a more conservative estimate presented by Sacramento-based consulting firm Zanjero in 2023 capped the NPV at $986 million.

Critics on both sides of the state line suggest these returns are inflated, noting that the predictability of environmental, social, and regulatory factors is beyond the scope of such far-flung projections. Others believe Nebraska’s hawkish approach to water security should be holstered, favoring open discourse and interstate cooperation. Regardless, with $53.3 million in preliminary funding granted, and early timetables projecting a Q3 2032 completion date for the canal, it remains yet to be seen how and if Colorado will respond, legally or otherwise. 

“When I saw that report, I buy that some of those benefits are potentially there,” acknowledged John Fershee, dean of Creighton University’s School of Law. “They seem awfully definitive to me, particularly given the fact we could run out of water at some point in five, 10 years, you know? But it’s certainly based on the assumption that the water’s actually going to get there. It says if 500 (cfs) of water comes from October 15 to April 1, these are the benefits and this the outcome. And then my question would be, how sure are you about that first ‘if’?”

Fershee’s skepticism is well placed, as the compact dictates the Perkins Canal “shall not constitute the basis for any claim to water necessary to supply all present and future appropriations in the [South Platte River Basin’s] Upper Section.” 

In other words, Colorado is well within their legal rights to consume and withhold water anywhere upstream of Washington County’s western border, the canal’s existence notwithstanding. The aforementioned Zanjero consulting firm adjusted for this in their report, indicating a $184 million drop in value if Colorado utilized 50% of the available upper section flow ($802 million NPV). Many, including some lawmakers, don’t believe the canal will actually be completed—viewing it as a bargaining chip in a high stakes game of water rights poker.

“One of the challenges for Nebraska is that the compact doesn’t even impact Denver,” Fershee explained. “It’s what happens after Denver. So, if that’s what we’re worried about, we’re not in a great spot right now—nor are the farmers on the Colorado side post-Denver, right? And that’s ultimately going to be the negotiation.”

Before hitting the tenure track, Fershee practiced as an energy lawyer in Washington D.C., taking on cases related to natural gas and utilities on the federal level, while also serving on a regulatory council for renewable energy integration. He’s well acquainted with the complex, often contentious nature of resource allocation.

“Anyone who tells you the solution is easy—‘build a canal,’ ‘don’t build a canal’—is not telling you the whole story,” he cautioned. “There’s a lot of nuance to this, this is a tough challenge. There’s a climate overlay to this, the drought overlay, all of those things make this difficult. The big thing for me is we’re going to be negotiating this over and over and over again because the world keeps changing around us, including the flow of the rivers, the amount of population…so it seems to me that getting a good system of negotiation, working together while trying to protect your interests is the right balance, and I think that’s where we’re going to end up, five years after we build it or not.”

Fershee’s counsel holds true today, just as it did 100 years ago. When the Perkins County Canal—initially conceived and attempted by residents of Perkins County in 1894—was revisited by Nebraska decades later, a salvo of lawsuits and statues ensued. However, when the smoke cleared, both parties found themselves at the same place: the negotiating table. On April 27, 1923, representatives from both states convened in Lincoln, Nebraska, and signed what’s been seen as the first effective use of constitutional treaty power to broker interstate water interests: the South Platte River Compact.

Between its drafting last century and its application today, there’s a single element that permeates the recurrent conflict: drought. 

Heating Up

Visibility is zero, the atmosphere thick with robes of dust. Gusts reaching 70mph lash the barren terrain, kicking up plumes of debris; the howling winds encircle and devour all other sounds. There is no life here—the world exists in a void, spinning and sputtering without a heartbeat. At last, the storm subsides; the towers of dust collapse in slow motion. People crowd around a grainy screen, flickering a new image—they gasp, they laugh, they cheer. In parched river valleys, in dried up channels a 1,000 miles long, old theories choke and die. The year is 1971, and NASA’s Mariner 9 spacecraft has just transmitted the first clear photos of the Martian landscape—and the first conclusive evidence that the planet once swelled with water.

A half-century later, and a 142 million miles away, Howard “Howdy” Benjamin peered over horn-rimmed sunglasses.

“What’s the first thing they look for?” posed the cattle rancher from Cozad, Nebraska. “They land on a new planet [and] see if there’s water—because water makes life.” 

Coincidentally, Benjamin began raising livestock the same year the Mariner 9 launched into space, in 1971. Since then, his herd of cattle have grown substantially—both at his own feedlot, and the facility he co-owns with fellow Cozad cattlemen. As one might expect, water requirements scaled accordingly.

“Yard capacity’s about 3,500 head, you turn it over a couple of times to get to that many,” he said of his home range. “Down in Darr Feedlot, there’s about 50,000 head down there—[requires] at least 50 gallons [of water] per head per day in moderate temperatures.”

While the lots Benjamin oversees are rarely, if ever, at maximum capacity, that equates to roughly 225,000 gallons of water a day—a tall order given present climate conditions. 

According to climate data published by the U.S. Drought Monitor—visually represented by maps, regularly updated to reflect drought conditions throughout the United States—99.78% of Nebraska was experiencing ‘moderate drought’ at the start of this calendar year, with 17.17% seeing ‘exceptional drought.’ Despite this blanket desiccation, agricultural producers in central Nebraska’s Platte River Valley (like Benjamin) aren’t nearly as affected as those nearer the state’s borders. Ease of access to groundwater from the Ogallala Aquifer, wherein output varies greatly depending on substrate composition, is key—though Benjamin acknowledges prolonged drought could complicate matters.

“So far [the drought] has not affected the groundwater—drought affects the surface water, in Nebraska, more than groundwater. Your streams and river just don’t have flow, the Platte anyway,” Bejamin explained. “We’re totally relying on groundwater. To get that groundwater up out of the ground, that takes electricity, and all that surface water is used initially to generate power.”

Still, between emerging technologies, environmental efforts, and Nebraska’s robust Natural Resource District (NRD) infrastructure, Benjamin remains optimistic.

“I think our NRDs are doing a really good job [making sure] we don’t run out of groundwater—right now the surface water is what’s at jeopardy, and the only thing that will fix that is rain,” he said. “Your Natural Resource Districts, they have all the control of groundwater demand, and it’s up to them to make sure that any development is renewable. You can drill a livestock well [without a permit], low volume, but irrigation wells, no. You just have to be more efficient with the water that you currently have—that’s where pivot irrigation systems come in, and subsurface drip. They don’t require near as much water as gravity [irrigation].” 

Jeff Buettner, government and public relations manager and a 35-year veteran of the Central Nebraska Public Power and Irrigation District, paid the compliment in kind.

“Ag producers deserve a shout-out for what they’ve been able to do in terms of water conservation and improved irrigation efficiencies,” he said.

Irrigation districts like CNPPID work closely with NRDs and other state agencies to monitor, distribute, and protect Nebraska’s water resources—operating four hydroplants, including the behemoth Kingsly Dam, while maintaining the state’s largest reservoir in Lake McConaughy. Still, Buettner recognizes the precarious, potentially hazardous position imposed by reliance on groundwater development while surface flow is mitigated by extreme drought.

“In south-central Nebraska, our irrigated area, we have seen the drought result in increased demand for irrigation water, which definitely puts a stress on storage supplies in Lake McConaughy—inflows to the reservoir this past water year were the fifth lowest in the history of Lake McConaughy, which went into operation in 1941. In fact, nine of the 10 lowest inflow years at Lake McConaughy have occurred since 2001,” Buettner warned. “Now, that said, there are other factors in play. Irrigation wells are much more numerous now than they were prior to the 1980s. This is important because the majority of inflows to Lake McConaughy come as return flows from irrigation projects in western Nebraska and eastern Wyoming. The wells intercept water that otherwise would have returned to the North Platte River and been captured behind Kingsley Dam.”

While Beuttner ceded that present circumstances are far from ideal, and sustainability—in terms of groundwater recharge, surface water replenishment, and/or reservoir levels—may be comprised if precipitation levels don’t stabilize in the years to come, he considers Colorado’s recent incursions a more immediate threat.

“Building the canal is essential to gaining the water for Nebraska as provided for in the compact. For context, the 500 cfs of flow is enough by itself to fill Lake McConaughy in about five or six years—assuming, of course, that no water was let out of Lake McConaughy, which isn’t going to happen, but it helps show how much water Nebraska could gain,” Buettner said.  “For every drop of water not coming down the South Platte into Nebraska, that same amount must be provided by the North Platte River and through Lake McConaughy. And we’ve already discussed the pressure that McConaughy is under during dry periods.”

Unfortunately, anxieties and conflicts exacerbated by dry conditions are expected to continue this year. Taylor Nicolaisen, a meteorologist for the National Weather Service stationed at the Omaha/Valley forecast office, suggests that La Niña climate patterns developing in the Pacific Ocean will likely extend the dry spell. 

“It's not just Nebraska and the Plain states [being affected]. The past eight years have been the hottest eight years on record for the globe,” he said. “With La Niña expected to wind down this spring or summer, that cooler Pacific water will subside and the global temp will probably climb even higher. We were so short on moisture in 2022, that even if we equaled our wettest winter on record, we still wouldn't erase those deficits.”

While Nebraska may be cushioned by its huge share of the Ogallalla Aquifer, its remains a finite resource—and in an ever drier, ever thirstier world, it won’t last forever. Its people must reckon with the prospect of water insecurity—come hell or high water.

“I always say it takes 10 years to screw Mother Nature nature up,” Benjamin said, “and 100 years to fix it.” 

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This article originally appeared in the March/April 2023 issue of Omaha Magazine. To subscribe, click here. 
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