Archive for Tuesday, December 17, 2002

Settlement affirms Kansas’ water rights

Moratorium on new wells protects supply for downstream users of Republican River

December 17, 2002

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— A settlement announced Monday in the legal fight among Kansas, Nebraska and Colorado over the Republican River basin means more water will be available to downstream users in Kansas, the state's top water official said.

"We won what was important to us," said David Pope, chief engineer for the Kansas Division of Water Resources and the state's chief negotiator in the settlement.

The deal - which must still be reviewed by a special water master and approved by the U.S. Supreme Court - provides a moratorium on drilling new wells and protects water supply for downstream users that rely on the Republican River. It also means more water will be available in reservoirs for release to Kansas users.

The 1943 compact agreement spelled out distribution of the Republican River's waters, with Nebraska getting 49 percent, Kansas 40 percent and Colorado 11 percent.

Monday's proposed settlement does not change those allocations but it takes into account the impact of wells on surface flows to assure compact compliance.

Pope said the detailed settlement included enforcement provisions that call for arbitration before lawsuits can be filed as well as monitoring, verification and formulas to avoid future disputes.

"We tried to protect ourselves as much as we could to avoid future controversies," he said.

Kansas filed its lawsuit in 1998, accusing Nebraska of allowing irrigators to divert more than their legal share of the river's water.

Colorado was not part of the original lawsuit, but was later named as a defendant, said Ken Lane, a spokesman for Colorado Atty. Gen. Ken Salazar.

Nebraska had long argued that groundwater use is not regulated by the compact, and that it could pull its full allocation of river water plus the groundwater pumped by wells. Kansas argued that the thousands of wells connected to the river and its tributaries along the state's southern border affected the river's water flow.

Kansas Atty. Gen. Carla Stovall said the U.S. Supreme Court's decision not to dismiss the Kansas lawsuit, coupled with some unfavorable decisions to Nebraska by the special water master in the case broke the "log jam" that had prevented the settlement.

"It let Nebraska see the handwriting on the wall," Stovall said.

She credited Nebraska Gov. Mike Johanns for pushing his officials to settle with Kansas.

Kansas Gov. Bill Graves said the settlement avoids additional costly litigation while preserving and strengthening the Republican River Compact.

"I am pleased that a settlement has been reached by the parties in this case and that we now have a mutually accepted solution to water-use governance in the Republican basin," Graves said.

Nebraska and Colorado will pay no monetary damages as a result of the settlement. Kansas had once estimated that Nebraska might have to pay as much as $100 million in damages.

Stovall said the litigation never got to the point where damages were determined. She said she didn't know the cost of the lawsuit so far, but said it costs the state roughly $1 million per year to litigate a water case.

Graves and Stovall both credited Pope for the settlement. The states have been in negotiations for the past 14 months.

Some of the Kansas communities most immediately affected are in the lower part of the Republican basin, such as Clay Center and Concordia. But it will also impact communities such as Junction City and Topeka, Stovall said.

Kansas' lawsuit with Nebraska is the second such battle the state is waging with its neighbors over water. It also is fighting Colorado in the courts over water flows in the Arkansas River.

"Frankly, we are never going to stop fighting over water - it is a precious natural resource that there is not enough of to meet everybody's needs," Stovall said.

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