Mike Jess

MR. BARR: This is Jim Barr. It's October 13th, 2014. I'm in Lincoln talking with Mike Jess. Mike, would you give us a little background on yourself, and how you ended up being involved in natural resources?

MR. JESS: Sure. I -- this is Mike Jess. I grew up in Nebraska in a -- just north of David City on a farm, a dry land farm. During the 1950s, it was very dry. We didn't have a crop for two years running. And I remember my first experience with irrigation -- with water, generally, was in those years when we explored the idea of drilling a well on some property we had to the east of David City. We ultimately decided not to do that. And I'm saying we. It was actually my parents.

MR. BARR: Sure.

MR. JESS: Decided not to do that. They thought it was going to be very expensive. The interesting thing, as I look back on it, their view of irrigation at that time was that it would be used only in a very dry year, only when necessary. And that the pipe and everything would just remain in the shed except for a dry summer. They looked at it more as insurance than part of the actual production. At any rate, I then went on to the university, after graduating from David City High School, in civil engineering. And it was only through the happenstance of a summer job that I became interested in water resources. I worked for the -- it was then called the Department of Water Resources in the mid-60s as a summer job. And discovered I had a very passionate interest about water resources, and kind of adjusted my class schedules after that. And then went to grad school in the late 60s majoring in civil engineering with water resources being the topic. During the course of the grad school was when I first started to hear about natural resource districts. I was working at the Conservation and Survey Division on my thesis work. And Vince Dreesen, of course, was the director at that time. He was, I'm sure, involved in the legislative proposals. And I remember he started sharing with me and a couple of the other staff people at the survey division some maps that were being prepared showing the natural resource district boundaries, or the proposed boundaries at that time. And I don't remember the number of districts that there were. But as people working at the survey division, we tended to -- the work we were doing was generally along county lines. And so we looked at the maps and saw that they, in many places, were largely based on watershed boundaries. And, I suppose, just out of selfish inconvenience, thought, “Well, they ought to just be on the county boundaries. It would make our analysis a whole lot simpler and -- than what was proposed.” And as it turns out, 50-some years later, I guess, why, there's a mixture of each. Some of the district boundaries do parallel the watersheds, and others more along the counties. But at
that -- in 1970, after I had -- a short while after I'd gotten a master's degree, I was -- I went into the military in the Army and spent five years outside of Nebraska. When I returned in October of 1995, the NRDs had already been created --

MR. BARR: '75.

MR. JESS: -- or '75, yeah. They'd already been created. And I suppose all of them had a general manager by that time. And in October of '75 when I returned to Nebraska, it was just a few months after LB 577 had been enacted which was the -- really one of the first authorizations of management responsibilities by the legislature to natural resource districts for groundwater regulations. And we, at the Department, talked about that quite a bit. And it wasn't very long afterwards until the first request came in from the North Platte Natural Resource District to consider designating that the -- originally they were called control areas. And little -- procedure was a little different in those days a -- the Department of Water Resources had a much larger role in things than it does today. And natural resource districts under the original LB 577 requested the Department to do an investigation and to designate a groundwater control area. So, we did the first one in the North Platte Natural Resource District. I did the hearings for that at the -- after that invitation came. Did the analysis. And concluded that the area proposed by the North Platte NRD didn't really measure up or qualify for designation. And so the -- my recommendation to the director of the Department was to turn down the request. It was an interesting experience. The formal review of the information, and all that. Listening to all of the witnesses. But then the -- I guess you'd say behind the scenes was equal interesting in that, as it turned out, the directors of the North Platte NRD didn't really want to see the control area designated. And fairly quite freely admitted to me that they extended the invitation because they didn't want to confront their own residents, and say to them they didn't want to do this. And so it was, I guess, in their way of handling the responsibilities, simply easier to let the State turn them down. And they would then not a -- sort of have the guilt on their hands, I guess. We had then, as time went along, there were other invitations from different natural resource districts to designate control areas. The first one that was designated was the Upper Republican Natural Resource District. And they were very much wholeheartedly behind the invitation there to create the control area. But really, the only difference in points of view that I recall at the time, were -- pertained to a small portion of the natural resource district -- the Upper Republican Natural Resource District, which lies south of the Republican River. I was real hesitant, and virtually unwilling, to include that as part of the control area for the simple reason that there's no groundwater in that area. It's an area of high bedrock -- only a few windmills and house wells down there. The Ogallala Aquifer is absent in that area. It was, again, behind the scenes to realize the reaction that the elected board members had to all that. They didn't want to see it omitted as part of the groundwater control area. And the reasons varied somewhat. I suppose, in the minds of several, it was creating sort of a sub-district within the bigger district, and would present problems in trying to explain why the rules were different on one side of the river than they would be on the other. One of the board members at the time was pretty free in admitting they'd like to see that area included because it meant some additional ad valorem tax revenues that they would not be able to assess if the area was left out of the control area. We went on and the Upper Big Blue was probably the next one, I think. A large area that was designated a groundwater control area. The designation wasn't a problem there that I encountered. What was interesting was the political backlash, I think, against the elected board members after the control area was designated was pretty substantial. And the Upper Big Blue Board members found themselves really slowing down their schedule for activities, I think, in not imposing requirements for meters and other restrictions that they might have done had they not had the push back from -- kind of from the Henderson area, I think, is where that came from. Little Blue was another one that was created. They -- there it was, again, interesting, I think, the experience to see the board members, once we had designated the control area, got a lot of push back as well, and I think much of that was coming from the Adams County area. Really resented the imposition of controls. The groundwater control area was in place for probably six or eight years when we got a request to unhitch, and basically cease the designation of a control area. We had a lengthy hearing and ultimately ended up with a lot of discussions of the board members about why they had -- were doing a 180-degree turn. And it was a little like -- little reminiscent of the Upper Big Blue in that there was a lot of political opposition they were feeling. It was apparently intense. Some of the board members saying that there had been letter-writing campaigns, don't patronize my business unless I change my mind on this, and they were clearly intimidated. We did then, ultimately, abolish the groundwater control area in the Little Blue Natural Resource District. Subsequent to that, they reimposed a control area again, now called a management area. It's kind of gone back and forth in the Little Blue area -- Little NRD -- I suppose just reflecting the political mood at various points in time. Several other invitations to create natural -- or create -- in those days called the groundwater control areas, they were turned down. What I guess I saw subsequent to all that was a gradual movement of the natural resource districts to assert greater autonomy and control over the designation of the areas that would be under the regulation of the districts with kind of an eye to get the Department of Water Resources out of it. Not only did the Department have the authority to designate, any rules or regulations that the boards devised had to be approved and I rejected several of those. Again, couple of times, sort of the quiet, behind-the-scenes meeting, the board members were saying, “We hope you do reject these things. We've adopted them because we don't want to tell our constituents that they're nuts.” But at any rate, natural resource districts began combining their efforts to lobby the legislature to remove some of the authorities that the Department had and replace them with their own.

MR. BARR: Could you review a little bit the process that was involved in the designation, and what a designation meant?

MR. JESS: Yeah. The invitation from the natural resource districts was always to create a control area. It was always in the form of a formal resolution requesting the State, the Department of Water Resources, to begin a process which called for a public hearing. When I did all of these, I would generally sit down with the general manager and say, “All right we have your invitation. This is a formal process, and we'll treat it like a trial. And there are certain duties and obligations that people have. Me, to hold a fair trial and allow input by affected individuals. But the natural resource district, you've got some obligation to explain what you want geographically, hydrologically, and what has prompted you to submit this request.” And that was the part, at least for the North Platte NRD and the Lower Platte South Natural Resource District, which was quite shocking. They didn't realize that they were going to have to stand up and be counted. And I recall vividly, I think his name was Walt Retzlaff (phonetic), the general -- or the president of the Lower Platte NRD Board deeply resented having to do that. He really didn't think that was something he should do. And he wanted -- he was forthright saying, “I want you to take the heat for it and not me.” And I got -- I can't recall the names of the people in Scottsbluff, but similar --

MR. BARR: Yeah.

MR. JESS: -- kind of reaction. Any rate, once all of this evidence, as it's called, was put together, then it was up to the Department to review it, make a preliminary determination, share that with the board and the management of the natural resource district that was affected, take into account further input that they might have, and then ultimately render a final determination.

MR. BARR: Were there automatic regulations for restrictions if they were designated or was that part of the process?

MR. JESS: That -- the regulations was the subsequent part of the process. Once the area was designated geographically and stratigraphically, identifying the aquifers that would be involved, then it was incumbent upon the boards to devise the rules and regulations. And we saw, in the instance of the Upper Republican Natural Resource District, some fairly sophisticated regulations that showed evidence of paying close attention to the groundwater modeling that had been done. As they began identifying some of the townships where the groundwater (indiscernible) was more significant and applying regulations that probably were more severe or more restrictive there in those townships than elsewhere.

MR. BARR: Did they --

MR. JESS: Those regulations were drafted by the districts. They had a whole set of requirements, administrative requirements for hearings; input from citizens; and ultimately, by board action, approve them to be submitted to the State for ultimate approval. And most times they did get approved. But there were a few times, particularly with the Upper Republican, the manager was telling me, he says, “We know you can't approve these, but the local politics said we had to adopt them. So we want you to turn them down. Then we can look people in the eye and say, 'You can't do these things.'”

MR. BARR: Yeah.

MR. JESS: And I guess that's where -- you know I was talking before they -- maybe they -- they got tired of that and said, “Let's just take the Department out of it.”

MR. BARR: Was that done legislatively then?

MR. JESS: Yes, it was.

MR. BARR: Roughly when was that, approximately?

MR. JESS: That would've been done in the mid to late 80s.

MR. BARR: Okay.

MR. JESS: Most of the -- well, the three groundwater control areas that were designated by the State were done in the late 70s and early 80s. All of the rest of the area designations that has been adopted afterwards are now called management areas. And even what were once called control areas are now called management areas.

MR. BARR: Just a side issue, when did the Department of Water Resources merge into the Natural Resource Department occur?

MR. JESS: Yeah, I think that -- it was after I left State government. I believe --

MR. BARR: Oh, it was that recent.

MR. JESS: -- it was in 2003 --

MR. BARR: Okay, okay. I couldn’t remember when that was. In this process, we've used interchangeably water resources --

MR. JESS: Yeah.

MR. BARR: -- and natural resources.

MR. JESS: -- well it's -- it creates a lot of confusion.

MR. BARR: Yeah.

MR. JESS: The original LB 577 had the Department of Water Resources being the decision-maker with an obligation for input from the Conservation and Survey Division and the Natural Resources Commission. It wasn't until later, of course, that the Natural Resource Commission and the Department of Water Resources were merged together, and, really then, made that an unnecessary step.

MR. BARR: In your term in the Department of Water Resources, you dealt with a fair amount of interstate issues.

MR. JESS: Yeah, I did.

MR. BARR: You want to talk a little bit about those -- the North Platte and the Republican, particularly, and then the Blues if you want to?

MR. JESS: Yeah. I was the director from June of '81 until January of 1999. And there was a lot of interstate activity at that time. And it fell into my lap because of -- the director of water resources was, by statute, was the person designated to handle all of those things. We continued to have -- all of the compacts that exist today existed throughout my tenure. The South Platte Compact is one of those that is pretty much self-executing. And we didn't ever have much contention with Colorado over it. What bit of tension there was in the South Platte pertained to the Two Forks Reservoir that was proposed by Denver. The State of Colorado was never as vocal about that as the Denver Water Board was. At the -- and so that -- I guess, as they go, that would not rank up there high on the list. The North Platte River is -- its supplies of water are allocated by U.S. Supreme Court decree. And in the early 80s, mid-80s, the State of Wyoming was making various assertions to build reservoirs on some of the tributaries of the North Platte. And then took the position that the Pathfinder Irrigation District in Nebraska could not fill Lake Alice and Lake Minatare, as the district had done for over 70 years at that point. And they actually brought a lawsuit to enjoin Pathfinder Irrigation District from doing that. That came -- that was sort of the straw that overloaded the camel. By that time, Nebraska had done a lot of investigation in Wyoming. Had concluded that there was a lot of water consumption by irrigation, and by some of the municipalities, that was not permitted by the Supreme Court in 1945. And so we moved to reopen the case. And spent, well, the rest of my tenure -- we -- the case was reopened in October of '86. Ultimately, we had several court rulings favorable to Nebraska. But the outstanding issues that remained when I left office in 1999 got resolved, then, by stipulation and agreement in 2003. The Blue River, the Big Blue River and Little Blue River -- a fairly good relationship, I would say, between Kansas and Nebraska there. There were a couple years when things got very dry, particularly in the Little Blue portion of that watershed, that we did do some regulation in Nebraska in an attempt to cause the flow of the Little Blue River at the state line to increase. Each time that was almost at the tail end of the irrigation season, late August into September. And, I suppose, we were kind of saved because it started raining. And whether our regulation indeed did a -- caused the river to flow more was never really determined. We did find ourselves in the 80s looking at the Big Blue River itself, in that the compact provisions there call for the regulation of groundwater wells within a certain distance of the river itself. We commissioned a study to determine if the regulation of wells in that stretch would affect the flow of the river and if it would affect the flow of the river where there times delays, trying to use that research as a guide to any regulations that we might later impose. We -- the research showed us that, yes, indeed there are some wells there that do effect the flow of the river, but trying to regulate them -- the time delay in imposing a regulation and expecting to see an effect on the river would fall outside of the five-month period in which the flows to Kansas are to be assured. I think we felt fairly good about that from -- selfishly in Nebraska. But also felt fairly good because Kansas appreciated the situation, and accepted the study for what it was. And gave us assurance that they didn't expect that we would try to regulate wells, at least irrigation wells, to benefit Kansas. That's a river basin with a compact that also has water quality issues attached to it. When I left office, there was still a lot of research being done, mostly through the University of Nebraska, for -- aimed at atrazine and other chemicals that find their way into the water flowing into Kansas. And I, quite frankly, don't know what the outcome of any of that was. About two and a half years before I left office, Kansas sued Nebraska in regard to compliance with the Republican River Compact. They included Kansas (sic) in their lawsuit as well as a defendant. And that litigation, of course, still is continuing on. Prior to the lawsuit actually being filed by Kansas, we -- our relationship with Kansas was good enough that we knew that they were likely to file a lawsuit. And so we asked to -- if they would be interested in trying to resolve our differences before going to the step of filing a lawsuit. And we met for about 18 months. And a lot of confidential discussions -- largely, as I recall, at the Kansas City airport, as that was a convenient location, and kind of a neutral --

MR. BARR: Sure.

MR. JESS: -- place. We did come up with a proposal, each side, that we thought we could agree to. And we went to -- respectively back to our constituencies. Kansas encountered some resistance, but was able to get from constituents in Kansas that, reluctantly, this would be okay. We took the proposal to people in Nebraska, we basically got kicked in the pants. Said we were way too generous, and shouldn't agree to that. And so when we met the next time with Kansas, we knew that was going to be the last meeting because it was already a stretch for Kansas, and to expect them to make additional concessions was not going to play out. Ironically, what I see being offered now is about what we had in the --

MR. BARR: What was the --

MR. JESS: -- proposal that we took to constituents in Nebraska.

MR. BARR: What was the major sources of concerns or entities that were particularly concerned with the -- may have not wanted to go along with that?

MR. JESS: Well, we were conceding that groundwater was part of the compact. And at that juncture, nearly everybody in the Republican River Basin wanted to deny that. And that was beyond just people in the Republican -- even the State's legal position initially after Kansas filed was the compact did not include groundwater. I think all of us that were involved in negotiations, we'd read the Pecos River litigation. We knew what we should logically expect from the court. Even though the language wasn't explicit and the justices are not hydrologists, they still understood that there was going to be some impact and that it had to -- groundwater had to be made part of the --

MR. BARR: In this negotiations between Nebraska and Kansas, how much was involved with the respective departments of water resources, and how much involved was the attorney general and other entities?

MR. JESS: Yeah. The negotiators were from the two water agencies, the water agencies in each state. In our case, we had one of the -- we asked Terry Woollen --

MR. BARR: Yeah.

MR. JESS: -- who was an elected board member of the Lower Platte -- or the Lower Republican Natural Resource District to be a member of the negotiating team. He agreed. And I don't think he ever missed a meeting. Jim Cook was with the Natural Resources Commission. And the other two members were Ann Bleed and myself.

MR. BARR: Well, you've all been interviewed.

MR. JESS: Right. We did not include anybody from the attorney general's office. And I don't remember that we sought input from the attorney general's office. We periodically briefed them in what we were doing and saying. But, first, Mr. Spire and, then, Don Stenberg were very attentive, but were not attempting to interject direction or that sort of thing. And I can't speak for what was going on in Kansas.

MR. BARR: Yeah.

MR. JESS: There were -- their negotiating team did not include somebody like Terry Woollen. All of their members were State employees.

MR. BARR: Any --

MR. JESS: The other thing I guess I remember, you're talking about maybe going back a little bit, not the interstate stuff, but through the 80s and into the early 90s, when it came to water, many of the natural resource districts were at odds with one another. Particularly those in the Platte watershed. It started, I think, with the Little Blue Natural Resource District proposing the Catherland Project and ran into fierce opposition from Central Platte Natural Resources District, Twin Platte, and Lower Platte North. A series of several lengthy and, I'm sure, very costly hearings before the Department of Water Resources -- district -- Department of Water Resources -- over the water rights. The Little Blue case, there were four different rulings. I made three of them. They were always appealed. And the Supreme Court was highly involved in all of those, basically sending them back to the Department for further review. There was Central Platte Natural Resource District had its own very ambitious project, the Twin -- Twin --

MR. BARR: Yeah. It was the --

MR. JESS: I can't recall.

MR. BARR: -- Mid State Light.

MR. JESS: Yeah. It was Mid State Light.

MR. BARR: I can't think of the name either.

MR. JESS: And they ran into opposition --

MR. BARR: Yeah.

MR. JESS: -- from Lower Platte North.

The Twin Platte Natural Resource District proposed resurrecting the -- its project was the Perkins Canal, which was referenced in the South Platte Compact. They encountered opposition. And the small irrigation districts in the Republican River watershed proposed taking water out of the Platte. And that generated a lot of opposition. So there was a period of about a decade when many of the natural resource districts were at odds with one another. They don't seem to be so much anymore. And the -- for all of them at the time, if the enemy was not somebody taking their water out of the river to a different watershed, the equally fierce common enemy was the endangered species. And they were very resistant to making any concessions or even recognition that Nebraska had an Endangered Species Act and would have to comply with these provisions.

MR. BARR: Was the Department involved in the relicensing of -- the FERC relicensing of McConaughy?

MR. JESS: We were. We met a lot of times with the two irrigation districts, Central and Nebraska Public Power District, the license holders at that time.

MR. BARR: Oh.

MR. JESS: And, from time to time, tried to arbitrate some agreement between them and the Whooping Crane Habitat Maintenance Trust, Audubon, and the -- generally the environmental groups. And I think it was -- it finally came during the Nelson administration -- the irrigation districts by that time had spent 30 or 40 million dollars. The governor's office, the governor, he wanted to be more involved. Previously, we'd try to get people together. But we weren't as assertive as we turned out to be. So, we began making suggestions of things, maybe, you could -- ones I could do to get the support of the other and vice versa. And, I believe, it was Ann Bleed that initially came up with the idea of carving off a portion of Lake McConaughy for what's now called an environmental account. We pitched that several times. And I remember, to NPPD and to the Central management and then to the board members, and, I think, it was finally the board members that had gone to -- I suppose after paying so much money -- kind of coming to their senses, and realize there's gotta be a better way. So, it began getting some traction in the 90s. And I recall testifying in front of the FERC several times in Washington and, you know, writing lots of letters and overseeing a bunch of analysis, and that sort of thing. I talked about -- didn't talk about the Missouri River yet.

MR. BARR: Okay, yeah.

MR. JESS: I kind of took a diversion here.

MR. BARR: That's right. That's another one.

MR. JESS: I was around at the time when -- the drought of the early 90s under the management of the Corps of Engineers. The Corps continued to release water out of the upper basin reservoirs. And if you listen to North Dakota, South Dakota, and Montana, it was all for irrigation. Of course, if you sit in Nebraska, you realize we get a lot of hydro-power from all of that. And to -- what little navigation there was at the time pretty much terminated at Blair, once in awhile at Sioux City. But we did benefit from it. And the other thing that was made clear to me was the needs for water flowing in the Missouri River at navigation levels to adequately cool the condensers at the power plants operated by OPPD and NPPD. Environmental interests were very minor. I just found I couldn’t get much reaction from environmental groups about the Missouri River. They -- there were only a couple of pleasure boat harbors along the river, and those folks didn't seem to be particularly concerned about the Corps of Engineers' management. So, we found ourselves in Nebraska, unlike the Dakotas and Montana and unlike Missouri and Kansas, we were sort of in the middle. Things looked okay with the way the Missouri River was being managed by the Corps of Engineers. Nonetheless, there was a commitment by the Corps to review its master manual. And I suppose that must have been around '88 or nine or somewhere -- it was during the Orr administration. And that undertaking was -- became a life of its own. I think it went for a dozen years or so. Was very much involved in all the iterations of the master manual review as a member of the Missouri River Basin Association. I was the Nebraska representative and drug a lot of our staff members into all of that analysis as well. Took a lot of time. And, of course, not only the analysis, but trying to ensure people in Nebraska understood what was going on. It was one of those things -- drug out for so long that it was easy for people to kind of lose track. That's just the way government works, unfortunately.

MR. BARR: There was a fair amount of disagreement between the upper basin states and the lower at some points during that process.

MR. JESS: Yeah. And there still remains a lot --

MR. BARR: Yeah.

MR. JESS: -- of tension. And it's an interesting thing. I think it's peculiar with large public works projects, they are authorized and built for something that gets forgotten.

MR. BARR: Yeah.

MR. JESS: And --

MR. BARR: Sometimes change --

MR. JESS: -- in the Dakotas --

MR. BARR: -- and some of the uses change too.

MR. JESS: Yeah. In the Dakotas, the recreation industry that built up around the two reservoirs, Oahe and --

MR. BARR: Yeah.

MR. JESS: -- the upstream one --

MR. BARR: I can't remember what's up there.

MR. JESS: -- is substantial in terms of the economy of those states. It meant nothing in 1944 when Pick-Sloan was adopted. And it didn't mean much when the dams were built in the 50s and 60s, but it does today. And it's easy, I think, for many of us to look at the navigations and, boy, that's just never panned out. Admittedly, it's important to Missouri, but not so much to the rest of us. And I think the forgotten part in Nebraska is the value of the very low cost hydroelectric energy. When we mention that, people will say, “Oh, what is it even for?” And, of course, it's so virtually at cost to State government, the university, and to the public entities in our state. If it weren't there, they're still going to use the electric power. It would cost a whole lot more to those of us who are taxpayers. So it takes a bit of explanation for people to kind of comprehend all of that.

MR. BARR: It was never a part of the original to have the flows in Missouri as the augmentation for the Mississippi.

MR. JESS: No.

MR. BARR: That has -- that became an issue at certain points.

MR. JESS: It did. Particularly when the barge industry began asserting itself by filing legal briefs and what not. It got people's attention. And they started to read the language of the Pick-Sloan Plan, and they didn't see that. And legally I don't know how that's --

MR. BARR: Yeah, that's --

MR. JESS: -- supposed to be interpreted, but --

MR. BARR: It's been a background issue.

MR. JESS: Yeah.

MR. BARR: But I'm not sure, technically, they've got much to stand on, but --

MR. JESS: And I don't doubt that the large dams and the levies and what not have had a great deal of benefit to Nebraska for -- in terms of flood control. The flood four years ago was substantial in our state, but not what it could have been were it not for the public works that's been put in place.

MR. BARR: Great deal of that flood came below the dams.

MR. JESS: It came -- yeah.

MR. BARR: Downstream of the dams.

MR. JESS: Really a freaky set of circumstances occurred in the watershed and then after the Rocky Mountain snow melt had all come. I think, in Missouri, the flood control has been disappointing to a number of the ag producers in the valley adjacent.

MR. BARR: Yeah.

MR. JESS: They find that, although they may be on the land side of the levy, they still got a lot of water sitting on their fields. And they question the -- whether the flood control was what the Corps tells them it is.

MR. BARR: Any other major issues you'd like to comment on or reflect upon or NRDs?

MR. JESS: Well, I think that the natural resource districts now are a lot more united among themselves. It seems to me, at least in the area of water resources, that they are trying to get themselves in a stronger position for dictating water policy. It's creating a lot of tensions with irrigation districts -- public power and irrigation districts, and those entities who naturally look at the State as the regulatory authority and not the local boards of the natural resource districts. I think what you see in the Platte and the Republican, particularly, point out some of the shortcomings of the resource districts. The -- maybe the Republican is the easy one to understand. The river -- the same river flowing through three districts. And it's turning out it's difficult for elected board members in one district to manage themselves to benefit citizens in a different district.

MR. BARR: Yeah.

MR. JESS: And I think that is -- that was one of the things that people early on said could be a shortcoming with creating natural resource districts. And the other thing is what I saw in my tenure early on, people don't like to regulate themselves. And they don't want to necessarily stand up and be counted. It's sometimes difficult when expectations are unrealistic. I think that they'll do that.

MR. BARR: If it were under State regulation, what kind of manpower implications or financial implications would that have in the state?

MR. JESS: Well the State would have to have a lot more manpower. But I guess there would -- if the State were in charge, there wouldn't be natural resource districts.

MR. BARR: Yeah.

MR. JESS: So maybe -- to a certain extent, it's a wash. The people employed doing this stuff, instead of being in Alma, Imperial, and Curtis, would be somewhere else.

MR. BARR: How much has the difference between the appropriation system of the surface water and the correlative rights, I guess it is, on the groundwater, two separate philosophies to some extent, how much has that contributed to the difficulties here in Nebraska?

MR. JESS: Well, I think that's part of the issue there. I -- when I used to do classes (indiscernible), I tried to get my students to -- that's one of the more apparent things. It's a completely different system for managing scarce resources. The other clear distinction is a central figure, pointed authority versus locally elected authorities, and in the case of natural resources, 23 different ones --

MR. BARR: Yes.

MR. JESS: -- was always the frustration I heard from many of the well drillers when it came to getting permits to drill wells. They would like to have gone just to one place.

MR. BARR: Yeah.

MR. JESS: Instead, they had to first determine where they were going to be constructing a well and then find what the rules and regulations and the forms and all that were. And it was kind of a -- it was a sort of a nuisance, I think, in their view.

MR. BARR: What's the difference in ownership implications between appropriation ownership of water between appropriations, (indiscernible)?

MR. JESS: Well, the ownership of the water is established by the Nebraska laws. And then that body of laws says the water itself belongs to the public.

MR. BARR: In both ground and surface?

MR. JESS: Yes. There's a lot of people don't want to believe that. And I've stood in front of groups enough times to know that that's kind of fighting words to some people. But that is the body of law in Nebraska. And it's, perhaps, a little easier for people to understand it when it comes to water running in a river than when it is the water that's underneath the land that they own. Some other differences with -- that occur with groundwater versus surface water -- most of the groundwater, of course, has been developed by individuals financing their own wells and their own center-pivots and distribution systems. And, as a result, they can turn on the well whenever they want. Use as much as they want. They are not really accountable to sharing with somebody else. An irrigation district is different. Oftentimes, it is a district that they have to share and the water in a canal, may not everybody be able to use the water the same day or at will. They have to schedule the water. They collectively indebted themselves to pay the federal treasury for constructing this project they have. They've got a --

MR. BARR: And in some cases are required to pay whether there's water or --

MR. JESS: Yeah. Pay whether there's water there or not. So there's some fundamental differences there that go beyond just first in time, first in right versus correlative rights. And it's difficult for many people to -- that haven't experienced it, to realize what -- how profound that is.

MR. BARR: I may have gotten a little away from natural resources.

MR. JESS: Yeah, sure.

MR. BARR: A --

MR. JESS: Well, but if it's in --

MR. BARR: Yeah, it's related.

MR. JESS: -- because you find --

MR. BARR: And I guess that's the thing. It's -- they've evolved into a different type of entity because the original was to combine the existing conservation districts and --

MR. JESS: Right.

MR. BARR: -- flood control, and some of that other -- drainage, and some other things. And then the State water plan helped bring the ideas together to --

MR. JESS: Right.

MR. BARR: -- form the natural resource districts. But one of the things left out of the State water plan was anything about groundwater.

MR. JESS: Yeah.

MR. BARR: And that's developed over time and been assigned to the NRDs so --

MR. JESS: And I think that's one of the criticisms that, well, a number of us have had, is that that's where we really needed planning.

MR. BARR: Yeah.

MR. JESS: And the planning was not there. And it took place by chance and by circumstance and probably not the ideal way to do it. The outcome has not been as you might hope. I remember, early on, trying to foresee how this was going to play out. And we had an interesting discussion. I know Vince Dreesen was there. And I think Warren White might have --

MR. BARR: Okay, yeah.

MR. JESS: -- been there as well. And he said to avoid all this that we could see coming, which has played out, why didn't they create a law that would say, if the groundwater is part of the surface water, it's all got to be regulated first in time, first in right? These very remote areas that it's not connected, --

MR. BARR: It was never really --

MR. JESS: -- let the natural resource districts handle that because they're going to look at it more provincially.

MR. BARR: It was never really in the discussion of the State water plan. It simplified the State water plan's construction greatly by leaving it out, --

MR. JESS: Yeah, yeah.

MR. BARR: -- unfortunately.

MR. JESS: And that's now what's the problem.

MR. BARR: And I think another --

MR. JESS: Takes root of the other --

MR. BARR: -- problem with the planning, too much was emphasized on a final written plan. When, in reality, planning involves continuous process.

MR. JESS: Yeah.

MR. BARR: And that is --

MR. JESS: But I remember people reacting, and asking, “Well, God, isn't it ever going to get done? This is a perpetual.”

MR. BARR: But that really is what it is.

MR. JESS: It is. I know.

MR. BARR: And --

MR. JESS: But you got the push back from the --

MR. BARR: Yeah. And I know there was resistance.

MR. JESS: Yeah.

MR. BARR: So, anyhow. Well, at this point, I guess, do you have anything you'd like to comment on, reflect upon, anything? I'm glad to --

MR. JESS: Yeah. No, I think, this will be -- I'm curious to read what you got.

MR. BARR: I went through one of these too, and -- yeah, it's interesting. Well, thank you very much --

MR. JESS: All right, yeah.

MR. BARR: -- for doing this.

MR. JESS: Good enough.