Archive for Tuesday, October 12, 2004

River fights continue to cost state

October 12, 2004


— Kansas has won important legal battles and resolved big issues in its battles to make sure enough water flows to farmers and communities in the Arkansas and Republican river basins.

Yet, with expenses from two decades of fighting approaching $20 million, the state faces the prospect of keeping the money spigot open. Atty. Gen. Phill Kline's office plans to ask legislators for an additional $1.2 million next year.

Pursuing litigation with other states is only part of the job of protecting the state's water rights. The other part is seeing that court orders and agreements are followed.

Kansas officials may not like it but they understand they have entered a long legal battle that they can't drop.

"Kansas is a downstream state, and the economy of our state depends upon having adequate water flows coming across the border," said Derek Schmidt, chairman of the Kansas Senate's Agriculture Committee.

Most of the state's expenses come from its lawsuit against Colorado, alleging that state diverted millions of gallons of water that should have remained in the Arkansas River in southwest Kansas. Kansas sued in 1985; the case has been before the U.S. Supreme Court three times.

In 1995, the Supreme Court sided with Kansas and later agreed that the depletion, over the previous four decades, amounted to about 10,000 acre-feet of water a year. In 2001, the Supreme Court told Colorado to pay $29 million in damages.

But the two states were back before the justices last week, still arguing over money and how to measure the amount of water that must flow into Kansas. The Sunflower State hopes to obtain an additional $24 million from Colorado and prevent Colorado from averaging water flows over 10 years to determine how much to release.

Kansas also argued that the Supreme Court should appoint a river master who would, in Kline's words, provide "adult supervision" to the two states.

The conflict has been less intense with Nebraska and Colorado over the Republican River, which in Kansas affects mostly farmers and communities in north-central Kansas.

Kansas sued in 1998, but the three states settled in 2002. The U.S. Supreme Court approved the last piece of that settlement a year ago.

Kansas officials have estimated that in a dry year, Kansas could receive 40,000 more acre-feet of water a year than it had been receiving previously -- enough to meet a city like Topeka's annual needs.

Yet Kline noted that Kansas still must watch to see whether the other states -- particularly Nebraska -- follow the agreement. This summer, Nebraska farmers worried that complying with the agreement would force them to cut their use of water for irrigation by 40 percent.

Spending on the water litigation briefly became a bone of contention between Kline and Gov. Kathleen Sebelius' office, which said in a recent memo to reporters: "The lawsuits have now been settled or are in the process of being finalized."

Kline complained -- and noted that a request for an additional $1.2 million will be coming to cover expenses for the year starting July 1, 2005.

Sebelius spokeswoman Nicole Corcoran replied, "If there's money needed for litigation in the future, that definitely will be a piece of the budget."

The state probably can count on spending the money.

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