• Jennifer Heywood

Lincoln Journal Star Editorial on Republican River lawsuit decision

Editorial, 3/2: Ruling bodes well for future March 01, 2015 11:59 pm • By the Journal Star editorial board

The ruling handed down last week by the U.S. Supreme Court in a lawsuit filed by the state of Kansas means that all the tough irrigation restrictions implemented by Nebraskans in the Republican River basin paid off.

The decision was a valid reason for Nebraska officials to celebrate. The livelihoods of hundreds of farmers and a chunk of the state’s economy were at stake.

As Don Blankenau, the outside attorney hired by Nebraska, said, it was a win-win for the two states.

Consider the circumstances. Kansas filed the lawsuit because Nebraska irrigators were using so much water that the flow of water in the river at the state border was below the amount set in a 1943 compact.

Under the ruling Nebraska still had to pay $5.5 million for violating the terms of the compact. Kansas, however, initially had sought $80 million. The settlement exceeded Kansas’s legal cost by only $1 million. Importantly, the ruling excluded water that migrates from the Platte River into the Republican River basin from calculation of damages.

The high court’s ruling upheld the findings of a special master who in 2013 wrote that Nebraska “began turning over a new leaf in 2007 and thereafter, planning for compliance with more care and urgency.”

In a 2013 report, the three Natural Resource Districts in the basin reported that allocations of water for irrigation had dropped an average of 25 percent. The NRDs also agreed to reduce groundwater pumping volumes 25 percent by this year. They had already made considerable progress toward that goal in 2013.

“Rules and regulation have helped produce rising aquifer levels in some regions, stabilized levels in others and significantly slowed the rates of decline in other areas,” the NRD’s reported. Of the three, the NRD in the worst shape is the Upper Republican NRD in the southwest corner of Nebraska, where groundwater levels have been declining for decades.

Terms of the settlement give Nebraska a sharp monetary incentive to continue to conserve.

The $5 million check Nebraska will write to Kansas includes a $1.8 million “disgorgement” payment for “unjust economic gains.”

The court said, “Nebraska’s new compliance measures, so long as followed, are up to the task of keeping the State within its allotment. And Nebraska is now on notice that if it relapses, it may again be subject to disgorgement of gains.

“That, we trust, will adequately guard against Nebraska’s repeating its former practices.”

Nebraska Attorney General Doug Peterson said he was confident the decision would allow the state to “leave the past where it belongs — in the past.” Let’s hope he’s right. The steps Nebraska has taken to meet the terms of the compact also put the state closer to its goal of sustainable water management.

(Copyrighted material – permission to publish obtained from the Lincoln Journal Star.)

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