By Russ Pankonin, The Imperial Republican
It’s often said the wheels of justice move slowly. The suit that Kansas filed against Nebraska clear back in December 2007 couldn’t be any better proof of that.
Finally, more than seven years later, the issue was put to rest by the justices of the U.S. Supreme Court.
When Nebraska and Kansas settled a previous suit in 2002 over the use of water in the Republican Basin, Nebraska agreed not to exceed its allocation of water going forward.
However, drought conditions in 2005 and 2006 forced farmers to pump far more water than allocated to keep crops alive to the tune of 70,869 acre feet.
On Dec. 19, 2007, Nebraska received an official letter from Kansas notifying us that we had exceeded our allocation for the two-year period.
Ultimately, Kansas wanted $80 million in damages, the shutdown of 302,000 irrigated acres in the basin, and an injunction against Nebraska forbidding the state to exceed allocations in the future.
Nebraska believed the agreed-upon water model in the 2002 settlement inaccurately charged the state for water that seeped into the Republican Basin from the Platte River basin, also known as imported water.
When the two states couldn’t reach any agreement after non-binding arbitration, Kansas filed the suit against Nebraska. A lawsuit between states automatically comes under the jurisdiction of the U.S. Supreme Court.
The high court first appointed a special water master (an attorney) to study each state’s claims. Over a two-year period, the special master gathered evidence through briefs, hearings, depositions and a trial. His last action was to deliver his findings and recommendations to the U.S. Supreme Court.
The special master’s 2013 ruling mostly favored Nebraska but both states filed objections to the findings. The master only awarded Kansas $5.5 million in damages and Kansas felt they were entitled to more. Nebraska didn’t believe damages were warranted at all.
The master did recommend that the water model used to measure a state’s water supply was inaccurate and needed to be changed. Kansas disagreed.
Attorneys for both states presented oral arguments in front of the high court in October 2014. On Tuesday the high court came out with their ruling that basically followed the recommendations of the special master.
All in all, their decision was a big win for Nebraska, especially in the measuring of Nebraska’s water supply in the basin.
In recent months, Kansas has come to the negotiation table to work on agreements for crediting of Nebraska and Colorado’s augmentation pumping towards compact compliance.
The Supreme Court’s ruling is now the law of the land and Kansas can no longer dispute it. After what seemed like forever, these issues between Kansas and Nebraska have finally been put to rest.
Nebraska’s attorney general’s office looks forward to working together with Kansas to turn recent short-term agreements into long term agreements, along with planning for the future.
This decision brings a great deal of stability to the Republican Basin. Nonetheless, irrigators in the basin must continue to make efforts to stay in compliance and adopt new technology and farming practices that allow them to grow the same crops with less water.
Irrigators in the Upper Republican Natural Resources District have led the state in water management for more than 30 years. No doubt, they will be the ones leading the way going forward.