Republican River States Cooperate More After Ruling

By Christopher Brown

Aug. 7 — Colorado, Kansas and Nebraska have moved from an atmosphere of conflict and litigation to one of cooperation in the wake of a March Supreme Court decision in a Republican River Compact case, an official with the Kansas Division of Water Resources said.

In the ruling, which concerned primarily Kansas and Nebraska, the Supreme Court followed the recommendations of the special master. Specifically, it ruled that Nebraska had exceeded its Republican River Compact allocation by 70,869 acre-feet (Kansas v. Nebraska, 2015 BL 61682, U.S., No. 126, ORIG., 3/9/15).

Kansas was awarded $5.5 million, a figure that included a portion of the gain Nebraska reaped from the violation in addition to the direct damages to Kansas, David Barfield, chief engineer of the Kansas Division of Water Resources, said at the summer meeting of the Kansas Water Congress Aug. 6.

In the waning months of the litigation, Kansas officials began working with the other two states on a regular basis to avoid new litigation over attempts by Colorado and Nebraska to use augmentation projects to meet their obligations to Kansas under the compact, Barfield said.

Those negotiations have resulted in temporary agreements and seem likely to produce a permanent resolution, he said. They also suggest that conflicts in administering the compact can be dealt with by the states themselves rather than by the courts, he said.

Kansas Sought Damages, Remedy 

Kansas had two principal goals in the litigation with Nebraska over the Republican River Compact, Barfield said. The state sought an award of damages and the prescription of a remedy cutting back Nebraska's use of groundwater, which Kansas argued was a significant factor in its neighbor's violation of the compact.

On the damages side, the loss to Kansas was calculated to be around $4 million, Barfield said. But the economic gain to Nebraska was as much as eight times greater than that figure. Kansas argued in the lawsuit that the court should award it Nebraska's gain in order to provide a disincentive to future violations of the compact, he said.

The court “really wrestled” with the question of damages, Barfield said.

“The court had never awarded anything besides economic loss before, and they weren't ready to go with us all the way on that,” he said. “The special master recommended that, this time, Kansas be awarded the loss plus a small part of Nebraska's gain, and that next time, should there be one, the state would be awarded a large part of the gain.”

The court ultimately followed the special master's recommendation, awarding Kansas $5.5 million.

“But we have the hammer now, and that will help ensure Nebraska's compliance,” he said.

Augmentation Projects 

With the conclusion of the lawsuit between Kansas and Nebraska, the three states have now turned to a new set of issues arising from the overdevelopment of groundwater by both Nebraska and Colorado, and from the effects of that overdevelopment on surface-water flows, Barfield said.

The reduction in surface-water flows has made it more difficult for Nebraska and Colorado to meet their compact obligations, he said. But rather than make significant cuts in their use of groundwater, each state has developed an “augmentation plan” to replace the water lost to groundwater use with water piped in from somewhere else.

“Under these plans, each state computes its overuse of the groundwater, and then they buy up the needed water rights, bring the water in in a pipeline, and dump it into the river to offset their overuse,” he said.

Colorado has one project in operation, on the North Fork Republican River near the state line with Nebraska, and Nebraska has two, he said.

Kansas's problem with the plans is that they don't deliver the water in a manner that ensures the state can use it, he said.

Approval Needed by Compact Administration 

Under the compact, augmentation plans have to be approved by the Republican River Compact Administration, Barfield said. But Kansas objected to the Nebraska plans on the grounds that the water in each of the projects was delivered “too high up in the basins,” he said. “It was delivered so high up that we weren't sure we were going to actually get the water.”

The states were unable to resolve the dispute during 2013, but began to take a more cooperative approach beginning in the middle of 2014, he said.

“A year ago, the states finally got over the litigation-arbitration approach, and started to engage in discussions,” he said. “We've been meeting monthly since that time, and brought in a large group of people on their side and on our side—including at the department-secretary level—to really try to figure out how we could make Nebraska's plan and Colorado's work for Kansas as well.”

The discussions have been “very productive” and have resulted a short-term agreement for 2014-2015 that provides Nebraska the credit it needs for the augmentation flows, in exchange for its agreement to “get the water to the Harlan County Reservoir in an account that we could use,” he said. This had significantly improved the supply of water to the Kansas Bostwick Irrigation District, which was directly affected by Nebraska's previous compact violations, for 2014 and 2015, he said.

Working Toward Solution 

“And now we're working toward a long-term solution,” he said. A final resolution will involve the states, the local irrigation districts as well as the federal Bureau of Reclamation, he said. “We're heading in the right direction, but it's taking a while to get the states and everyone to agree.”

Kansas objected to the Colorado augmentation plan because its pipeline dumps water into the North Fork Republican River, while the groundwater overuse that affects Kansas takes place on the South Fork Republican River, he said. “They weren't putting the water where we needed it,” he said.

Following the model that appears to be working with Nebraska, Kansas officials and Colorado officials have begun a series of monthly meetings to find a resolution to the dispute, Barfield said. “The goal is to find a way to make the augmentation plan work for Kansas as well as helping Colorado meet its obligations,” he said.

To contact the reporter on this story: Christopher Brown in St. Louis at chrisBrown@bna.com

To contact the editor responsible for this story: Larry Pearl at lpearl@bna.com