The Importance of Trust in the Republican River Compact

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Contributed by:Ashley M.

Article last edited 20 Dec 2015 by AshleyM
Article originally added by AshleyM

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The history and experience of Colorado, Kansas, and Nebraska in negotiating the Republican River Compact and resolving the ensuing conflicts serves as an interesting example of the role of trust in transboundary water resource problems. As with all transboundary water resources, it is necessary to build trust and understand the interests of the stakeholders in order to manage the resource jointly and address emerging issues. The parties were able to do this effectively in the original negotiation of the Republican River Compact, but this process needs to be ongoing in order to maintain trust. In a long-term agreement, the individuals who represent the stakeholders will change over time and the interests and priorities of the stakeholders will also change in response to emerging conditions.

Trust is particularly important in the Republican River Compact because amending the agreement requires unanimous support. On the one hand, unanimity rules remove the power asymmetries that can inhibit value creation and provide some assurance to weaker parties that their concerns cannot be dismissed or ignored. On the other hand, unanimity rules can result in inaction or stalemate if parties cannot reach consensus. It only takes the dissent of one party to impede the effectiveness of administering the compact.

Eroding Trust

Many actions can erode trust amongst riparians. In the Republican River Compact three key actions can be identified: (1) a riparian repeatedly voices concerns that are disregarded or ignored by the other compact parties, (2) a riparian violates the terms of the compact in a manner that is perceived to be intentional, (3) riparians engage in arbitration or litigation to resolve their disputes.

In this case, Kansas felt that its concerns and interests were ignored or minimized in multiple instances by both Colorado and Nebraska. In particular, Kansas felt that Nebraska and Colorado failed to acknowledge and address the impact of groundwater pumping on stream flows and the water supply in a timely manner. During the dispute over the Colorado’s proposed augmentation pipeline, Kansas and Nebraska felt that Colorado ignored their concerns about the project. In recent years, Colorado and Nebraska have perceived Kansas as unwilling to cooperate or consider negotiated solutions. Additionally, they viewed Kansas’ demands for compensation and other compliance mechanisms as unreasonable and a sign that Kansas had no empathy or willingness to consider the impacts on other stakeholders.

In the Kansas v. Nebraska and Colorado (2012), Kansas alleged that Nebraska’s noncompliance was intentional and requested that the court take use strict measures to ensure that Nebraska would comply in the future. This was not just a matter of Kansas questioning Nebraska’s ability or capacity to meet its legal obligation in water short years. Rather the mistrust was so deep that Kansas believed Nebraska willingly overused water and had not taken necessary steps to ensure future compliance.

The case of the Republican River Compact also illustrates how resorting to arbitration or litigation can erode trust. These mechanisms for dispute resolution required the parties to take rigid positions and allow a third party to make a ruling or recommendation. Trust and relationships were damaged as a result of the adversarial nature of litigation, the allegations made, and the length of time and financial cost of the process. Additionally, different special masters and arbitrators were used during the different disputes.

Enabling Trust

Recent efforts in the Republican River basin also demonstrate how trust can be nurtured or rebuilt. The results of the non-binding arbitrations and litigation were unsatisfactory to all parties. The actions taken by the compact members since the latest court ruling seem to indicate that the states have now recognized the importance of rebuilding trust and recommitting to mediated negotiation. They have publicly acknowledged that working collaboratively and exploring mutual interests is in everyone’s best interest moving forward.

The state representatives of the RRCA have committed to meeting more frequently. This has allowed them to spend more time carefully understanding the concerns and interests of each state in a more comprehensive manner. It has also facilitated better working relationships and demonstrated that they are all committed to resolving persistent problems together. It also helped Kansas understand the specific reasons why Colorado and Nebraska were having difficulty complying with the compact and why there needs to be more flexibility to explore new compliance options and mechanisms. In turn, Nebraska and Colorado gained a better understanding of Kansas’ specific concerns regarding the timing, reliability, and certainty of water deliveries to its users.

Nebraska and Kansas worked together to address Kansas’ concerns about future compliance. By thoroughly explaining the steps it had taken and the mechanisms it had put in place to avoid overuse in water short years, Nebraska was able to ease Kansas’ concerns. This also demonstrated that Nebraska was actively trying to come into compliance and intended to be a better partner.

These actions have improved trust and a series of new agreements have been reached over the past year. The recently negotiated agreements are temporary or short-term, which is a key action to nurture the newly rebuilt trust. The temporary agreements are important because the states can test new options without a binding commitment. For example, they agreed to allow the Colorado augmentation pipeline to operate for one year in order to better understand the downstream impacts and continue discussions on this issue. The temporary agreements also allowed the states to resolve the pressing issues for the coming year, while providing more time to continue negotiating a long-term agreement that works for everyone. This is important because the negotiation of Final Settlement Stipulation was done on a short time scale to avoid a US Supreme Court trial. The FSS was ineffective in resolving key disputes, in part due to the rushed nature of the negotiation and oversight on key issues.

The Republican River Compact is moving in a positive direction in regards to managing a transboundary water resource for mutual gain. What remains to be determined is whether this new spirit of collaboration will be sustainable, particularly as new challenges arise and water scarcity issues become more pressing.