Bump and update: From KansasReporter.org (Rachel Whitten):
The day after the Nebraska Cornhuskers routed the K-State Wildcats 48-13, a federally appointed arbitrator favored Kansas in a case where Nebraska tried to contend that monetary damages they paid the Sunflower State should also be applied toward credits for water from the Republican River. Nebraska has been paying Kansas monetary damages after it took more than its share of water from the river that starts up north and In this arbitration case, it wanted the independent arbiter—who is assigned by the U.S. Supreme Court—to rule that the money it paid in damages should also purchase water credits from Kansas. But the arbiter called a flag on the play. “[This] would result in a windfall to Nebraska, allowing accountability for potential future violations to be erased with a single payment for a past violation,” the arbiter wrote.
Update: From KWCH.com (Roger Cornish):
Colorado officials have proposed a compliance pipeline to offset the effects of groundwater depletion on streamflows. The arbitrator ruled in favor of the State of Kansas and against the State of Colorado and recommended further action by the states. The arbitrator agreed with Kansas on a number of details for the pipeline plan and concluded Colorado should adopt most of Kansas’ technical objections to the pipeline plan.
Update: Here’s the reaction from State Attorney General John Suthers via a report from Tony Rayl writing for The Yuma Pioneer. From the article:
“We’re obviously disappointed in the arbitrator’s decision.” Suthers said. “However, it is important to note that the arbitrator recognized Colorado’s fundamental right to proceed with a pipeline to assist in compact compliance, that the proposal provides a reasonable and necessary approach by Colorado, and that Kansas does not have an unfettered ability to block the project. Most of the arbitrator’s decision focused on additional details that she felt should have been included in the proposal. Colorado will continue to work to assure that we comply with the Republican River Compact while protecting the livelihoods and jobs of those living in the basin. I remain optimistic that Colorado and Kansas can reach an agreement on this pipeline to assure this happens.”
Update: More coverage from Tony Rayl writing for The Yuma Pioneer. From the article:
Colorado, Kansas, and Nebraska — the three states involved in the Republican River Compact — now have until November 1 to give notice on whether or they accept the decision. If any reject the decision — and it likely would be Colorado if any of them do — it would enter the appelate court system. Pagel’s decision is non-binding, but it likely sets the tone for any further legal wrangling concerning the pipeline. While Pagel sided with Kansas on nearly every disputed fact brought forth in the arbitration hearing held in July, her final decision made it clear Colorado’s plan to use a pipeline as an augmentation source was reasonable, and she outlined how the sides could come to a reasonable compromise to get the plan approved by all three states through the Republican River Compact Administration (RRCA)…
Another key issue is if Colorado can replace overuse on the South Fork with water delivered to the North Fork. Pagel again recommended a compromise. She agreed the water from the pipeline can go toward determing Colorado’s overall compliance. However, she agreed with Kansas that Colorado still needs to meet the South Fork sub-basin test. She said the arguments presented by Kansas are not unreasonable. The concern is Colorado, over time, will “over-deliver” pipeline water into the North Fork sub-basin in order to build a surplus. That in turn would be a disincentive for Colorado to implement separate compliance measures in the South Fork sub-basin. Pagel concluded there is nothing currently in the pipeline proposal that would stop Colorado from doing so. She suggested the proposal be clarified to limit the amount of augmentation credit applied to the North Fork, and should not allow for overuse on the South Fork until Colorado comes into compliance in that sub-basin…
Pagel finally ruled in favor of Colorado in regards to changes to the accounting procedures with a pipeline in place. She noted the changes were included in the revised resolution in August 2009, and Kansas never identified specific further changes, so its objection lacks merit. Pagel did note that the accounting procedures need to be reviewed in any final agreement to assure consistency…
In the end, Pagel ruled that in general Colorado’s plan is reasonable and a necessary approach to meet compact compliance. She also ruled Kansas has not been unreasonable up to this point in regards to its objections to Colorado pipeline plan, meaning Colorado is not entitled to a recommendation from her that the pipeline proposal should be approved. However, she noted that it should be approved with the changes she recommended, and if Kansas continues to object at that point, it may suggest there is nothing Colorado can do to get Kansas’ approval.
From The Topeka Capitol-Journal:
…the arbitrator [Martha Pagel] urged Colorado to adopt most of Kansas’ proposals regarding construction of a “compliance pipeline” that would offset the effects of groundwater depletion on streamflows that affect the amount of water available downstream in Kansas.
Kansas officials, while encouraged that Colorado is exploring ways to meets its legal obligations under the compact, note that the states have yet to agree on details of the plan…
More information about the Republican River Compact, including the arbitrator’s decisions, is available on the Kansas Department of Agriculture website at www.ksda.gov/interstate_water_issues/content/142.