Supreme Court Justices to wade into decades-old water use dispute — E&E Publishing

From E&E Publishing (Jeremy P. Jacobs):

The Supreme Court tomorrow will wade into a decades-long water use dispute between Kansas and Nebraska.

At issue is a localized disagreement among the two states and Colorado over an interstate compact that allocates water from the 430-mile Republican River.

The river — which rises in Colorado, crosses the northwest tip of Kansas before crossing into Nebraska, and then re-enters north-central Kansas — travels a sparsely populated area. It drains a nearly 25,000-square-mile watershed, and more than 1.8 million acres of land is irrigated using its water to grow crops like corn, soybeans and milo.

Use of the river has been contentious since the three states sought to create a compact in the early 1940s. President Franklin Roosevelt vetoed the first version, and later signed the congressionally ratified compact in 1943.

The case is narrow in scope and is unlikely to yield a ruling from the justices with broad implications.

Kansas has long claimed that Nebraska is using more than its allotment. The state first took the case to the Supreme Court in 1999, claiming that Nebraska’s groundwater pumping was depleting the river.

That case led to a 2003 settlement that added groundwater to the terms of the compact.

However, by May 2010, Kansas claimed that Nebraska used about 79,000 acre-feet more than its allotment in 2005 and 2006. It again asked the high court to review the case, and the court, for the second time, appointed a federal judge — or “special master,” in court parlance — to resolve the dispute.

The judge’s report found that Nebraska did knowingly violate the compact in 2005 and 2006, but has since taken steps to come into compliance. It recommended requiring Nebraska to pay Kansas $5.5 million, roughly the equivalent of the water Kansas lost plus a $1.8 million penalty.

It also recommended amending how the states administer the compact by changing its accounting procedures to include water entering the basin that is not part of the Republican River’s “virgin water supply.” “Imported water” drains into the basin every year from the Platte River, which sits at a higher elevation to the north.

The original compact did not include water that migrated from the Platte River, and the judge reasoned that use of the imported water should not count against a state’s Republican River allotment.

The judge suggested that the Supreme Court adopt a “five-run solution” proposed by Nebraska and backed by Colorado that more accurately reflects groundwater consumption and imported water.

Tomorrow morning, the justices will consider each state’s exceptions to the report’s recommendations. Kansas, for example, does not want to rewrite the compact’s accounting procedures and is seeking more money from Nebraska for its violations. It is also seeking an injunction to bar Nebraska from taking too much water from the basin.

Nebraska, on the other hand, contests the $1.8 million penalty to be awarded to Kansas and takes exception to the judge’s conclusion that it “knowingly failed” to comply with the compact.

The Obama administration has also weighed in on the dispute and has urged the justices to uphold all of the judge’s recommendations.

“The United States supports the Master’s report,” Solicitor General Donald Verrilli wrote in court documents, adding that the government supports “overruling the parties’ exceptions.”

The court will rule on Kansas v. Nebraska and Colorado by the end of next June.

From the Kearney Hub (David Hendee):

Nebraska’s regulatory landscape is significantly different now from when the state consumed more Republican River water than allocated in 2006.

So is some of the physical landscape in and around the basin in southwest and south-central Nebraska.

There are stricter regulations on how much underground water farmers may pump to irrigate cropland. Two pipeline projects pour water into the Republican River to supplement flows during dry periods. And there are fewer acres of irrigated cropland.

Nebraska’s biggest challenge under a 71-year-old interstate compact that shares the river water with Kansas and Colorado has been staying within its allotment in dry years. Now the state should never again find itself violating the compact in dry years, said Dean Edson, executive director of the Nebraska Association of Resources Districts.

“Everything’s in place,’’ he said. “Taxpayers are protected, the aquifer is protected and the irrigated-acre tax base of rural communities in the basin is protected.’’

New state laws, tighter regulations and innovative projects by the Upper, Middle and Lower Republican Natural Resources Districts and the Twin Platte NRD have made the difference since 2007, Edson said.

The estimated 1.1 million irrigated acres in Nebraska’s portion of the river basin represent what is believed to be the largest area of regulated groundwater use in the eight-state region that overlies the Ogallala Aquifer, a vast underground reservoir of fresh water.

No other state has more stringent water-pumping regulations than Nebraska, Edson said. Allocations in Nebraska’s Republican basin have declined to between 9 and 13 inches annually. That’s approximately 45 percent less than allowed in neighboring Kansas, Edson said.

Rules and regulations have helped produce rising aquifer levels in some regions, stabilized levels in others and significantly slowed rates of decline elsewhere, he said. Further reductions in water use are assured by requirements agreed to with the State of Nebraska that groundwater pumping volumes decrease by 20 percent, to 1998-2002 levels. An additional 5 percent reduction is required by 2015.
Nearly two years ago, four Natural Resources Districts bought 19,500 acres southwest of North Platte that lie squarely between the Platte and Republican Rivers. About 15,800 of those acres were irrigated and now are retired from irrigated production.

A six-mile pipeline is taking water from about 30 wells that would have been used to irrigate crops on that land and delivering it to the Republican via Medicine Creek. The 42-inch-diameter pipeline was used for the first time this year to meet Nebraska’s flow obligations to Kansas.

“Without this project, severe and sudden reductions in water allocations might have to have been imposed on irrigators in the basin,’’ Edson said.

Edson said the willingness of landowners to impose a $10 per irrigated acre tax on themselves made the project possible.

“I’ve not met anyone yet who wants their taxes raised, but if we don’t augment stream flows, we’d be looking at the forced shutdown of at least 300,000 irrigated acres, or nearly a third of the irrigated acres in the basin,’’ he said. “It’s pretty doggone cheap compared to what they could lose. It would be devastating.’’

A similar project in the southwest corner of the state retired 3,260 irrigated acres in Dundy County. Water that would have been consumed by crops is sent seven miles through a 24-inch pipeline to Rock Creek for delivery into the Republican River.

From Supreme Court of the US Blog (Ryke Longest):

Origins of the Republican River Compact

The Republican River begins in Colorado on the eastern side of the Rocky Mountains, then flows through part of Kansas. The river then crosses and into Nebraska before crossing back into Kansas, where it then turns southeasterly. In Junction City, Kansas, it joins with the Smoky Hill River to become the Kansas River, a tributary of the Missouri River.

More than 24,000 square miles of watershed on the Great Plains support the flow of the Republican River. This territory contains rich agricultural soils and relatively abundant average annual rainfall. During the Great Depression, the three states and the federal government planned to use the Republican River for water resource development. This area was at the western edge of the Great Plains Dust Bowl, which experienced horrific dust storms in 1934 through 1935 that carried tons of soil through the air as far as the Atlantic Ocean.

Federal relief programs were mobilized to help the residents respond to the terrible conditions. A devastating flood on the Republican River in 1935 hastened along state and federal planning to create both flood control and irrigation projects. Federal agencies endorsed the need for the projects as well as their feasibility, but the Bureau of Reclamation warned that they should not go forward until the three states entered into a compact.

The states had agreed to terms within a few years, but President Franklin Delano Roosevelt vetoed the first attempted compact in response to objections by federal agencies. On December 31, 1942, on their second attempt, the federal government and Colorado, Kansas, and Nebraska agreed to an interstate compact to allocate water flowing in the Republican River. This compact was then ratified by the state legislatures, approved by Congress and signed into law by the President on May 26, 1943. However, rather than resolving all controversy about water allocation between the parties, the compact merely moved the locus of the disputes. Since its signing, disputes between the states over water use focus on the compact’s terms.

Origin of disputes under the Compact

Flows in the Republican River have been declining for decades, with reduced flows in nearly all its tributaries. The reduced flows alarm farmers in all three states who rely on irrigation to keep crops at profitable yields. As the primary downstream users, Kansans look to the compact to protect them from overuse by upstream users. As the state with the largest allocation, Nebraskans look to the compact to protect their farmers from unreasonable demands from Kansans.

When use increases and flows decrease, disputes follow. As the aphorism often attributed to Mark Twain goes, “Whiskey is for drinking, but water is for fighting.” Disputes among users and their political leaders come quickly behind the spread of economic prosperity.

Under the compact, disputes first flow through the Republican River Compact Administration, which consists of one representative of each of the three states. Following ratification, all states needed to change water resource allocation laws within their respective states to ensure compliance with the new compact’s requirements. In 1945, Kansas enacted a statute that combined allocation of groundwater and surface water into a unified permitting system using prior appropriation principles. In Nebraska, allocation of groundwater remained subject to restriction by common law principles of reasonable use within the context of correlative rights as set forth in the 1933 case of Olson v. City of Wahoo. The state codified these principles in 1975 and later adjusted its groundwater law in 1996 with amendments under LB 108, promoted by Nebraska Governor Ben Nelson. Nebraska’s efforts under LB 108 were clearly designed to prevent allocation of groundwater in a way that causes violations of an interstate compact. Yet its critics maintain that these efforts hampered management by putting the fox in charge of the henhouse (local Natural Resource Districts).

Groundwater’s special place

When the compact was signed, one of its key purposes was to remove all causes that “might lead to controversies.” Yet, within its key terms lay the seed of controversy: the term “Virgin Water Supply.” It was defined as the “water supply within the Basin undepleted by the activities of man.” Nebraska interpreted the caveat “within the basin” to exclude groundwater pumping from the scope of activities that deplete the Virgin Water Supply. The compact defines “basin” as the “area naturally drained by the Republican River and its tributaries.” Nebraska’s argument unduly restricted the scope of the Virgin Water Supply by taking the groundwater that drains into the Republican River and its tributaries out of the compact.

In many places, the Republican River is a gaining stream, one where groundwater from alluvial and surficial aquifers seeps into the riverbed. Excluding groundwater from allocation formulas in a gaining stream will always lead to problems unless groundwater pumping from alluvial and surficial aquifers is completely prohibited. In a gaining stream system, these aquifers are just as important sources to stream flow as the surface tributaries. However, these flows are harder to measure, model, and quantify.

Litigation before the Supreme Court: Round I

In 1999, the Supreme Court granted Kansas’s motion for leave to file a bill of complaint. Kansas complained that Nebraska had violated the compact by allowing proliferation of thousands of groundwater wells that were connected to the Republican River. Kansas’s complaint asserted that Nebraska’s regulatory apparatus failed to prevent the violations into the future, and it asked for damages and a decree commanding Nebraska to meet its delivery obligations under the compact. Nebraska sought leave to file a motion to cismiss the complaint under Federal Rule of Civil Procedure 12(b)(6) and presented affirmative defenses to Kansas’s complaint. Nebraska’s Rule 12(b)(6) motion was limited to the question whether the compact applied to groundwater consumptive use within Nebraska. Colorado responded that groundwater from alluvial aquifers was included within the compact but groundwater from the deeper Ogallala aquifer was not. The Court appointed a special master to preside over the hearing, after which the special master’s report recommended that Nebraska’s motion be denied. In June 2000, the Supreme Court denied Nebraska and Colorado’s exceptions and sent the case back. Following a series of memoranda on various issues by the special master, the parties negotiated a settlement stipulation.

Republican River Compact settlement stipulation

The settlement stipulation imposed additional obligations on the parties beyond those required by the Compact itself. All parties waived any claims against each other arising prior to 2002, and the stipulation required a drilling moratorium on wells within the Republican River Basin. It also explicitly recognized that groundwater was a component of the Virgin Water Supply. Beyond that, the parties to the current dispute disagree about significant aspects of the settlement stipulation as well as the special master’s report. While the stipulation established that the scope of covered water was water originating in the basin, there arose a dispute over the method of accounting for “imported water” – water that was originally part of the neighboring Platte River Basin but now percolates into the Republican River. In places, this seeping imported water had raised the water table by ten feet. The special master has proposed changing the accounting procedure so that Nebraska may use water imported from the Platte. Kansas vehemently objects that this change violates the terms of the compact.

Each state will argue objections to the special master’s report. Expect to hear Kansas argue forcefully in favor of the Court strengthening its disgorgement remedies against Nebraska and requesting injunctive relief. Nebraska will argue that the special master’s disgorgement remedy was too harsh. Nebraska also admits that it overused its allocation for the year 1996, but that in so doing it did not violate the compact but took steps immediately thereafter to reduce consumptive use and to pay Kansas for its actual damages. Kansas also objects to the special master’s proposed amendment to the settlement stipulation, a remedy defended by Nebraska.

Colorado will argue that the disgorgement is not allowed for unintentional violations by Nebraska and that the proposed award represents a windfall for Kansas. The Solicitor General will argue that the special master’s report falls within the scope of the broad discretion afforded the Supreme Court in fashioning remedies for breaches of compacts. He will defend the partial disgorgement remedy as protective against efficient breach concerns, but he will also argue against Kansas’s request for injunctive relief. It will be interesting to see whether the Court inquires about injunctive relief as a further protection against efficient breach concerns.

More Republican River Basin coverage here.

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