U.S. Supreme Court clears Kansas to reopen water dispute over Nebraska’s use of Republican River
Topeka ? The U.S. Supreme Court on Monday reopened Kansas’ lawsuit against Nebraska aimed at stopping its northern neighbor from using Republican River water to irrigate thousands of acres of farmland.
The high court gave Kansas permission to file a new petition over its allegations that Nebraska took more than its share of water in 2005 and 2006 — enough to supply a city of 100,000 people for a decade. Kansas sued Nebraska over the Republican River in 1998. The two states settled the case five years later, but Kansas contends Nebraska violated the terms of the agreement.
Now Kansas wants to force Nebraska to reduce farm irrigation in its portion of the nearly 25,000-square-mile river basin and to pay Kansas back for the economic gains Nebraska allegedly saw for using too much water. Kansas previously calculated the amount of the potential payment at $72 million.
“We would all like to resolve this without re-engaging the Supreme Court,” Kansas Attorney General Derek Schmidt said during an interview with The Associated Press. “We’d prefer to solve it like neighbors, but we do expect Nebraska to live up to the commitments it has made.”
If Kansas prevails, Nebraska will be forced to stop irrigating about 500,000 of the 1.2 million acres in its portion of the Republican River basin, and farmers there would have to rely on rain to grow crops.
Nebraska officials have acknowledged some overuse of Republican River water but questioned Kansas’ accounting, and they’ve noted that Nebraska has been in compliance with the settlement since 2006.
“Our farmers have done what is necessary for the last several years to ensure we are doing our part,” Nebraska Attorney General Jon Bruning said in a statement.
In Kansas, there’s been bipartisan support for efforts to force Nebraska to cut its water use. The Sunflower State’s request to the U.S. Supreme Court to reopen the lawsuit was filed last year by Attorney General Steve Six, a Democrat unseated by Schmidt in the November election. Schmidt and Bruning are Republicans.
“We don’t believe Nebraska has lived up to its end of the bargain,” Schmidt said. “The court at least believed our claim had enough merit to take a look.”
Lawsuits among states over water are filed directly with the Supreme Court, but it typically appoints a special master to review evidence and make recommendations to the justices. To hear Kansas’ latest petition, the Supreme Court appointed William J. Kayatta Jr., an attorney from Portland, Maine.
Use of the Republican River’s water is governed by a 1943 compact between Colorado, Kansas and Nebraska. Colorado was given 11 percent of the water, while Nebraska was allotted 49 percent and Kansas, 40 percent.
In the 1990s, farmers and officials in Kansas accused Nebraska of taking more than its share. Officials in both states had hoped the 2003 settlement would end the dispute but acknowledged at the time that monitoring and enforcement issues remained.
Kansas officials contend that in 2005 and 2006, Nebraska used 25.7 billion gallons more in water from the Republican River than it was due. The weather has been wetter since then, allowing Nebraska to comply with the terms of the settlement.
“Of course, the dry years are the critical years from a downstream perspective,” Schmidt said. “The key to an agreement is that it is implemented in good times and in bad.”
Bruning said that would happen.
“We have the management tools in place to continue to be in compliance with the compact,” he said.
An arbitrator appointed by the two states said in 2009 that Nebraska’s area natural resource districts should cut back on water allocations to farmers, a suggestion Nebraska rejected. But the arbitrator also recommended that Nebraska pay only $10,000 in monetary damages to Kansas.