■ NRDs praise Nebraska officials on Special Master Report. PAGE A3.
■ DNR is forecasting another compact call year for compliance. PAGE 1.
Arbitrator says further negotiations necessary
By Tony Rahl
The Yuma Pioneer
Colorado will have to negotiate further with Kansas, or go to the next level in the court system, before it can realize the benefits of its decisions to build an augmentation pipeline and drain Bonny Reservoir, in relation to the Republican River Compact.
Colorado and Nebraska entered into arbitration with Kansas earlier this year after Kansas’ representative on the Republican River Compact Administration voted against Colorado’s proposals on both issues.
The hearing was held before arbiter Martha Pagel earlier this fall, and Pagel issued separate rulings on both issues last Wednesday, November 27.
In essence, Pagel ruled Colorado is taking the proper steps, but that Kansas remains “reasonable” in its objections.
“Although the Arbitrator found that Colorado’s revised Compact Compliance Pipeline (CCP) proposal had made significant progress in addressing unresolved issues from the prior arbitration proceeding, and that Colorado had offered a reasonable and persuasive proposal for modifying inputs to the Groundwater Model, the district is disappointed that Arbiter Pagel was not able to provide Colorado with any relief from the obstructionist behavior of Kansas officials,” stated the Republican River Water Conservation District in a statement issued by its legal representative, Peter Ampe of Hill & Robbins.
The “reasonableness” issue was key to both proposals. Colorado attempted to make the case Kansas was being unreasonable in its objections, and thus should have to join Colorado and Nebraska in granting RRCA approval. Though the majority is in favor of both proposals, unanimous approval is required for all issues brought before the RRCA, which consists of one representative from each of the three states.
Pagel ruled in favor of Kansas on the reasonableness issue with both proposals.
According to the RRWCD statement: “…the Arbiter was unable to provide any guidance on a pathway to resolving these issues given the Arbiter’s conclusion that there is no standard of proof that would allow Colorado to overcome any Kansas objection if the Arbiter determines the objection to have any basis.”
Colorado has purchased more than 50 wells and built a 12-mile pipeline to deliver water from the well field to the North Fork of the Republican River, a short distance upstream from a stream flow gage at the Colorado-Nebraska state line. The water rights have been consolidated into eight wells that will pump groundwater from the Ogallala aquifer to the North Fork.
The pipeline was completed and dedicated in August 2012, but has yet to be used because Kansas has withheld its approval.
Pagel ruled that Colorado’s compact compliance pipeline does not have to be approved by Kansas as a matter of law because Kansas’ objections are not unreasonable.
Kansas asserts the revised proposal still does not address related policy issues raised in the prior arbitration proceeding.
The states had an arbitration with Pagel in 2010 concerning the pipeline, which identified eight issues that had to be resolved between the states.
Pagel noted in her most recent ruling that five of the eight issues have been resolved. The three remaining issues continue to be stumbling blocks, however.
The combined historical consumptive use of the wells purchased for the pipeline is at approximately 13,000 acre feet per year. Colorado would never pump more than that historical consumptive use, and proposes pumping a minimum of 4,000 acre feet annually.
Kansas asserts Colorado’s selected approach does not adequately address negative pumping effects. Colorado contends it does appropriately account for impacts.
Both states had their own experts plead their case. Pagel wrote the “reasonableness test” cannot be used to resolve which expert opinion should prevail.
Since it is Colorado that is seeking the change, Pagel ruled, then it must continue to seek unanimous approval “so long as there are reasonable points of disagreement.”
Pagel’s 2010 decision stated there could come a time when Kansas’ refusal to approve the plan would be unreasonable, but she ruled last week that point has not yet been reached.
Kansas also still has concerns Colorado will try to use the pipeline to make up for shortages on the South Fork in order to pass the statewide compliance test.
Colorado’s revised proposal clarifies its intention to use the pipeline to meet its North Fork obligations, but Kansas argues Colorado could over-deliver water into the North Fork to build a surplus, and thus maintain statewide compliance even if out of compliance on the South Fork.
Pagel notes that the Bonny Proposal addresses compliance in the South Fork sub-basin. If Colorado is not out of compliance on the South Fork, then “the issue may become moot.”
However, since Colorado currently is out of compliance in both sub-basins, Kansas’ concerns are not unreasonable.
Pagel’s ultimate finding was that Colorado’s pipeline proposal includes adequate operational limits to implement the plan as proposed. However, the exact necessary operational limits will remain unknown until current disagreements over the augmentation plan are resolved, she ruled.
Bonny Reservoir proposal
In order to meet its South Fork compact obligations, in 2011 Colorado released all water held in Bonny Reservoir, and allows future inflows through the dam.
Colorado has presented the Bonny Proposal, which requests changes in the Groundwater Model Kansas denied approval of the proposal during a special meeting of the RRCA in May, resulting in Colorado sending it to arbitration.
Kansas acknowledged during the arbitration hearing that Colorado’s proposed use of the “Accounting Procedures” for calculating the impacts, or changes, to evaporation losses and reservoir seepage from draining Bonny Reservoir is acceptable.
However, Kansas asserts Colorado’s proposal grants a credit to Colorado for reductions in groundwater pumping that do not actually occur. It argues Colorado receives an undue benefit, and causes harm to Kansas.
Kansas contends draining of Bonny gives Colorado accounting benefits that result in a significant reduction in the computed pumping depletions for Colorado, even though Colorado has not actually reduced groundwater pumping.”
Pagel noted that though Colorado’s proposal could result in a potential benefit, that benefit “is consistent with Compact requirements and presumably part of the benefit of the bargain that Colorado made in deciding to drain the reservoir as a means of achieving Sub-basin compliance.”
Pagel wrote it was a “razor-thin call” on whether the Bonny Proposal should be approved. She acknowledged that draining Bonny was a difficult decision for Colorado, and it could make that decision without the RRCA approval.
However, RRCA approval is needed to change Groundwater Model inputs and summaries, as described in the proposal. That opens the door to Kansas to question the overall impact of the proposal
Pagel writes it is “inevitable that a finding in favor of Kansas will further delay Colorado’s ability to receive the benefits of its difficult decision.”
The evidence Kansas presented at the hearing, though, “demonstrates a reasonable basis for further evaluation of the Proposal and there is not sufficient evidence to support a finding of bad faith or unfair dealings by Kansas… the States are therefore left with further negotiation on the issue, or further litigation.”
The RRWCD cannot operate the pipeline until the plan receives RRCA approval. The water for the pipeline lies within the Sand Hills Groundwater Management District, and that district’s board must approve the export of water. It has stated it will not allow the export until Colorado receives 100-percent credit.
The RRWCD’s statement from Ampe says the district has no choice but to encourage Colorado to proceed to the next step in this process, seeking a review of the Kansas positions by the U.S. Supreme Court.