• Jennifer Heywood

Supreme Court Decides Water Dispute

By Nicholas Bergin | Lincoln Journal Star

Nebraska officials cheered a U.S. Supreme Court decision Tuesday that closes the book on a longstanding legal dispute with Kansas over water from the Republican River.

The high court upheld the recommendations from a judge, referred to as a special master, who found Nebraska should pay Kansas $5.5 million for using more than its share of the river’s water in 2005 and 2006. In a split 5-4 decision, the court also signed off on Nebraska’s request to change the formula for allocating water.

Don Blankenau, Nebraska’s legal counsel for Republican River Compact litigation, said Nebraskans should be happy with the outcome considering that Kansas originally asked for $80 million in damages and that the court shut down irrigation on thousands of acres of farmland, which would have resulted in the loss of $500 million in property values. “I think Nebraska ought to be pretty thrilled with this,” he said Tuesday.

The dispute centers on a 1943 compact allocating 49 percent of the river’s water to Nebraska, 40 percent to Kansas and 11 percent to Colorado.

The Republican River starts in the high plains of Colorado and flows east across the northwestern tip of Kansas and then runs across the southern part of Nebraska before crossing back into Kansas and eventually meeting up with the Smoky Hill River to form the Kansas River.

Water lawsuits between the states are filed directly with the U.S. Supreme Court, which appoints a special master to review them and make recommendations to the justices. Special Master William J. Kayatta issued a 188-page recommendation in November 2013.

Nebraska Attorney General Doug Peterson released a statement saying his office is pleased with the decision and emphasizing the importance of changing how water used in the basin is accounted for.

“The court’s agreement with Nebraska’s correction of the accounting procedures will ensure that Nebraskans receive their full compact entitlement, and that Nebraska is no longer improperly charged for using water to which Kansas is not entitled,” he said in the statement. “We are confident that payment of the court’s recommended award will finally allow us to leave the past where it belongs – in the past.”

The updated accounting is worth about $20 million to Nebraska a year, if one puts a monetary value to the water, Upper Republican Natural Resources District Assistant Manager Nate Jenkins said. Under the change, Nebraska will not be charged for using water that naturally migrated from the Platte River basin into the Republican River basin, he said. “The benefit that Nebraska gets from that accounting change significantly outweighs the penalties Nebraska will have to pay,” Jenkins said.

Gov. Pete Ricketts also expressed his approval in a statement, saying, “Today is a good day for Nebraska. I am pleased to see that the court has made a reasonable decision. I look forward to working with the governors of Kansas and Colorado to move forward.”

Relations between the states over the Republican River have improved greatly in recent months. They recently signed agreements giving Nebraska 100 percent credit for water it is pumping into the Republican River in 2014 and 2015 to stay within the constraints of the compact. The agreement also allows Nebraska to hold water in reservoirs and release it when Kansas farmers need it.

To help supplement river flows during dry times when crops are thirstiest, Nebraska natural resources districts have bought up thousands of acres to take them out of production as part of two projects to pump water that otherwise would have been used in irrigation into the river.

Kansas Attorney General Derek Schmidt said the Supreme Court has never before ordered an upstream state to give up part of its economic gains in an interstate water dispute. “Legally, this is a groundbreaking case that vindicates Kansas’ rights as a downstream state,” he said in a news release. “We brought this lawsuit to encourage our neighbors to live up to their obligations in future dry periods. I’m hopeful this strong and clear Supreme Court order will have that effect.”

Schmidt said the $5.5 million will be used to reimburse his office for the nearly $4.5 million it spent to bring the lawsuit. The remainder will go to the Kansas Legislature.

Supreme Court Justice Elena Kagan, writing the majority opinion, said the court was adopting the recommendations of the independent expert the justices appointed to help resolve the states’ differences. Justices Samuel Alito, Antonin Scalia and Clarence Thomas dissented on both counts, joined by Chief Justice John Roberts regarding the formula.

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