Difference between revisions of "The Republican River Compact"

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|Climate=Semi-arid/steppe (Köppen B-type)
 
|Climate=Semi-arid/steppe (Köppen B-type)
 
|Area=64,790
 
|Area=64,790
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|Geolocation=40.044963241082975, -101.55869007110596
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|Geolocation=40.0449632411, -101.558690071
 
|Issues={{Issue
 
|Issues={{Issue
 
|Issue=How will the water allocations defined under the compact be enforced and how should non-compliance be penalized?
 
|Issue=How will the water allocations defined under the compact be enforced and how should non-compliance be penalized?
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|Stakeholder Type=Federated state/territorial/provincial government, Sovereign state/national/federal government, Local Government, Non-legislative governmental agency, Community or organized citizens
 
|Stakeholder Type=Federated state/territorial/provincial government, Sovereign state/national/federal government, Local Government, Non-legislative governmental agency, Community or organized citizens
 
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|Key Questions=
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|Key Questions={{Key Question
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|Subject=Transboundary Water Issues
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|Key Question - Transboundary=How can mutual trust amongst riparians be nurtured? What actions erode that trust?
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|Key Question Description=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.
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Recent efforts in the basin demonstrate how trust can be nurtured or rebuilt. In the Republican River Compact three key actions can be identified: (1) the compact administration committed to meeting more frequently to better understand the concerns and interests of each state, (2) Nebraska thoroughly explained the steps and mechanisms it had put in place to avoid overuse in water short years to ease Kansas’ concerns about future noncompliance, and (3) the recently negotiated agreements are temporary, allowing for time to test new options without a binding commitment and continue negotiating a long-term agreement that works for everyone.
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|Water Feature=
 
|Riparian=
 
|Riparian=
 
|Water Project=
 
|Water Project=
 
|Agreement=
 
|Agreement=
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|REP Framework===== Timeline ====
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* Early 1870s – settlement of the basin by pioneers following the Homestead Act of 1862
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* 1930s – Dust Bowl and extended drought prompts interest in developing surface water resources
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* 1934 – Colorado and Nebraska attempt to negotiate an interstate compact for the first time; Kansas refuses to be party to the compact
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* 1935 – devastating flood along the Republican River in Nebraska
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* 1940s – Colorado, Kansas, and Nebraska enter into negotiations of interstate compact to allocate and develop shared water resources in the basin
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* 1941 – proposed compact is ratified by the state legislatures, consented to by Congress, but vetoed by President Roosevelt
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* 1943 – compact is revised to satisfy the federal government and the states officially entered into the Republican River Compact
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* 1949 – representatives of the compact states meet with the Bureau of Reclamation and the US Army Corps of Engineers to review a comprehensive plan for water conveyance and storage in the basin, construction continues through the 1970s
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* 1959 – Republican River Compact Administration (RRCA) is created
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* 1980s – Kansas begins to raise concerns about impact of groundwater pumping on compact compliance, concerns are largely disregarded by the other parties
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* 1995-1997 – Kansas and Nebraska attempt to resolve compliance issues through mediation
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* 1998 – Kansas files complaint with the US Supreme Court against Nebraska alleging compact violation, Nebraska denies allegations
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* 1999-2000 – US Supreme Court appoints a special master who holds hearings and makes a decisive ruling in the case, states engage in formal mediation to avoid going to trial
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* 2002 – the three states negotiate the Final Settlement Stipulation (FSS) agreement
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* 2003 – US Supreme Court approves the FSS
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* 2006 – Kansas again raises concerns about noncompliance in Nebraska and Colorado
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* 2008 – RRCA submits disputes over noncompliance to non-binding arbitration
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* 2009 – arbitrator releases final decision, but the states reject the decision
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* 2010 – Kansas files original action in US Supreme Court against Nebraska and Colorado
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* 2011 – Court grants Kansas’ motion to appoint a special master
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* 2013 – Special master issues report of findings and recommendations in Kansas v. Nebraska and Colorado
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* October 2014 – US Supreme Court hears arguments in the case, meanwhile the states reach a negotiated solution to allocations for 2015 irrigation season
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* February 2015 – US Supreme Court issues opinion on Kansas v. Nebraska and Colorado, requiring Nebraska to pay $5.5 million to Kansas for losses due to compact violation 
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* 2015 – states reach temporary agreement for next two irrigation years and continue to work towards a long-term agreement
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==== <big>Ecological and Geographical Background</big> ====
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===== Summary =====
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The Republican River basin drains approximately 25,000 square miles of land in northeastern Colorado, southwestern and south-central Nebraska, and northwestern and north-central Kansas. The headwaters originate in the high plains of the western portion of the basin and the Republican River is formed by the confluence of the North Fork Republican River and the Arikaree River. The river flows east 453 miles before eventually joining the Smoky Hill River to form the Kansas River.<ref>Bjerke, R. (2009). Stakeholder perceptions of water supply management and sustainability in the Republican River basin in Nebraska. University of Nebraska-Lincoln. School of Natural Resources.</ref> The geography of the basin is such that Kansas is both upstream and downstream of Nebraska creating an interesting interdependence on each other’s decisions.
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===== River Flow and Key Sources =====
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The key sources of water in the basin include both surface and groundwater sources. The predominant source of groundwater is the High Plains Aquifer, which underlies most of the basin. Additionally, there are alluvial aquifers that discharge groundwater into the tributary streams within the basin. The interaction between surface and groundwater has been a source of conflict within the basin as groundwater depletion has reduced stream flows.
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The flow of the river is highly variable along its length, from season to season, and from year to year. This is due to both the climate conditions of the area and the impacts of human use and water development in the basin. The climate of the basin ranges from semi-arid in the western portion to sub-humid in the eastern portion. The area is characterized by highly erratic climate conditions in terms of both temperature and precipitation due to its central location on the continent and position on the leeward side of the Rocky Mountains. It is also subject to extended droughts and intense rainfall events. Annual rainfalls range from an average of 15 inches in the western portion to 25 inches in the eastern portion, though this can vary substantially from year to year.<ref>US Geological Survey, Kansas Water Science Center. (March 1997). Major components of flow in the Republican River during drought conditions. Fact Sheet 234-96. Retrieved from: http://ks.water.usgs.gov/pubs/fact-sheets/fs.234.96.hansen.html.  </ref>
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Stream flows in the basin have declined over time, which has been attributed to several human factors in addition to climate considerations and recent periods of drought. One of these factors is reduced runoff as a result of conservation and land management practices. Another key factor is the development of groundwater resources and increased pumping for irrigated agriculture.<ref>Nebraska Department of Natural Resources. (June 2006). Hydrologic trends and correlations in the Republican River basin in Nebraska. Retrieved from: http://dnr.nebraska.gov/Media/iwm/PDF/RepublicanRiverBasinReport.pdf</ref> Until the 1950s, surface water was the primary source of irrigation water. With the invention of new irrigation technologies and well drilling methods came an expansion of irrigated land and reliance on groundwater resources. In 1940, there were an estimated 30,788 acres of irrigated land in the basin. Irrigated land had increased to 1,263,809 acres by 1970 and 2,757,110 acres by 2000.<ref>Final Report of the Special Master, Supreme Court of the United States. (September 2003). Kansas v. Nebraska and Colorado, No. 126 Original. Retrieved from: http://www.supremecourt.gov/SpecMastRpt/Orig126_102003.pdf</ref> Expansion of irrigated land and groundwater development occurred in all three states, but was significantly larger in Nebraska than in Colorado or Kansas.
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===== Manmade Diversions =====
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Water diversion structures exist in the Republican River basin largely to support agriculture in the basin. Though surface water development started in the late 1800s, very few water storage or flood control structures existed before the compact. After its approval, the states collaborated with the federal government to develop the surface waters of the basin through a series of Reclamation projects. Currently, there are seven Bureau of Reclamation dams and reservoirs, two Army Corps of Engineers reservoirs and twelve major canals for surface water delivery. In total, the reservoirs have the capacity to store 1.7 million acre-feet of water. Today, the reservoirs serve multiple purposes including flood control, water storage, irrigation, recreation, and support for wildlife.<ref>Kansas Department of Agriculture, Division of Water Resources. (2014). Republican River Compact. Retrieved from: https://agriculture.ks.gov/divisions-programs/dwr/interstate-rivers-and-compacts/republican-river-compact</ref>
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More recently, three augmentation pipelines have been constructed by Nebraska and Colorado to meet water delivery obligations to Kansas by piping groundwater from outside of the basin into tributary streams within the basin. In Nebraska, the Rock Creek augmentation pipeline began operating in 2013 and the Nebraska Cooperative Republican Platte Enhancement (NCORPE) pipeline started in 2014.<ref>Nebraska Cooperative Republican Platte Enhancement. (2015). Retrieved from: http://www.ncorpe.org/history</ref> The Compact Compliance Pipeline in Colorado began delivering water in 2014. Also in Colorado, the Bonny Reservoir was drained in 2011 to meet water deliveries under the compact and is now a designated wildlife area.<ref>Republican River Water Conservation District. (October 2010). Retrieved from: http://www.republicanriver.com/ </ref> These recent efforts have helped Nebraska and Colorado comply with the compact, but have been controversial.
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===== Other Natural Considerations =====
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The Republican River basin is also home to some endangered and threatened species that are protected under federal law, including the whooping crane, peregrine falcon, and bald eagle. The basin also provides crucial habitat for migratory birds such as ducks, geese, and Sandhill cranes.
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==== <big>Social, Economic, and Cultural Context</big> ====
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The water conflict in the Republican River basin has not been driven by differences in socioeconomic or cultural factors. The three states and the water users in each state are very similar in terms of socioeconomic status and culture. The population within the basin is estimated at 92,498. Population has remained largely unchanged in Nebraska and Kansas, but in the Colorado portion of the basin the population increased 31% from 1990-2000 and is projected to increase an additional 65% by 2030.<ref>US Census Bureau, Population Division. (2009). Population estimates and projections. Retrieved from: http://www.census.gov/population </ref> This trend may lead to increased conflict among water users in the Colorado portion of the basin.
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Agriculture is the predominant economic activity in all areas of the basin and therefore ensuring continued access to irrigation water is crucial to all three states and the local communities within the area. 
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==== <big>Governmental, Political, and Legal Context</big> ====
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===== Early Development of the Basin =====
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The United States acquired the land that includes the Republican River basin from France in 1803. Settlement of the area was very slow until after the Civil War and there was little human presence in the basin outside of the American Indian tribes. Driven by post-war westward expansion, the Homestead Act of 1862, and construction of the railroads, rapid settlement occurred through the late 1800s and early 1900s. During this time period, some private development of surface water in the basin occurred, but settlers soon realized the irrigation potential of the river had been overstated. The total supply of water was inadequate to support extensive irrigation, the large seasonal fluctuation in flows meant water was not available when it was needed, and the climate was unpredictable.<ref>Bjerke, R. (2009). Stakeholder perceptions of water supply management and sustainability in the Republican River basin in Nebraska. University of Nebraska-Lincoln. School of Natural Resources.</ref>
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As the effects of the Dust Bowl and drought of the 1930s worsened, public interest in building structures to store and convey water grew. State officials turned to the federal government for assistance in developing the basin. Under the Reclamation Act of 1902, Congress authorized federal support for flood control and land reclamation projects, but as a result of widespread interstate water conflicts in the west some of this support was conditional on resolving transboundary disputes. Thus, in 1934 Colorado and Nebraska tried to negotiate an interstate river compact in order to receive federal funding for water storage projects on the Republican River. Kansas refused to join the compact unless a reservoir would be proposed on the South Fork of the river. Colorado and Nebraska proceeded without Kansas, engaging in intermittent negotiations and conducting hearings with water users in their states.<ref>Knox, K. (2004). The allocation of interstate ground water: Evaluation of the Republican River Compact as case study (Doctoral dissertation). Retrieved from: ProQuest Digital Dissertations. (UMI 3143837).</ref>
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By May 1935, an agreement was drafted and the parties appeared to be close to agreeing when disaster struck. A series of high intensity precipitation events after years of drought lead to a devastating flood along the river in Nebraska. Officials estimated that 113 people were killed; over 74,000 acres of farmland were inundated, and up to 40,000 head of cattle were killed. Additionally, 341 miles of highway and 307 bridges were destroyed.<ref>National Drought Mitigation Center. Republican River Basin Water and Drought Portal. (2010). Retrieved from: http://www.rrbdp.org. </ref> Nebraska ceased pursuit of the project with Colorado and negotiations officially ended in January 1937 without an agreement. However, interest in a compact and surface water development projects resumed over the next few years as the same challenges the existed before the flood were still present and the need for flood control become more urgent.<ref>Knox, K. (2004). The allocation of interstate ground water: Evaluation of the Republican River Compact as case study (Doctoral dissertation). Retrieved from: ProQuest Digital Dissertations. (UMI 3143837).</ref>
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===== Compact Negotiations =====
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In May 1940, negotiations began between Colorado, Kansas, and Nebraska to create an interstate river compact. In the second attempt at an agreement, Colorado and Nebraska recognized the need to include all states in the basin. The states were increasingly interested in expanding irrigated acreage and surface water development in order to mitigate the effects of droughts and floods in the future after witnessing the devastation caused in the 1930s. They also recognized the need to draft a compact and agree on apportionment of the water in the basin before federal reclamation projects could be undertaken.<ref>Knox, K. (2004). The allocation of interstate ground water: Evaluation of the Republican River Compact as case study (Doctoral dissertation). Retrieved from: ProQuest Digital Dissertations. (UMI 3143837).</ref>
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During the negotiations, no federal representative was requested or appointed to participate. In March 1941 a proposed compact was signed by the state representatives and ratified by the state legislatures. Interstate compacts also require consent by the federal government so the ratified agreement was introduced in Congress. Congress consented to the agreement, but President Franklin D. Roosevelt vetoed it due to objections by some federal agencies. The compact was renegotiated, this time with the involvement of a federal representative. In 1943, the final Republican River Compact was approved by the federal government and took affect in the basin.<ref>Republican River Water Conservation District. (2009). The Republican River Compact Synopsis. Retrieved from: http://www.republicanriver.com/CompactInfo/RepublicanRiverCompact1942/RepublicanRiverCompactSynopsis/tabid/160/Default.aspx</ref>
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The major purposes outlined in the compact include: (1) to provide for the most efficient use of the waters for multiple purposes and recognize that the most efficient utilization is for beneficial consumptive use; (2) to provide for an equitable division of waters; (3) to remove all causes which might lead to controversy; (4) to promote interstate comity; and (5) to promote join action by the states and the US in the efficient use of water and control of destructive floods. The federal government does not have administrative authority in the compact, but it does have a role in providing collaborative assistance from the Bureau of Reclamation, US Geological Survey, and other agencies.<ref>Republican River Compact. Pub. L. No. 7860, 57 Stat. 86 (1943). Retrieved from: http://water.state.co.us/DWRIPub/Documents/rrcompact.pdf</ref>
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The main outcome of the compact was the allocation of the virgin water supply of the basin for beneficial consumptive use. The compact makes specific annual allocations for each sub-basin and includes provisions to make proportional adjustments to allocations when supply is more than ten percent below or above the average established in the compact. The amount of surface water available for allocation was determined based on eleven years of stream discharge records at various locations in the basin. The compact allocates 11% of the basin surface water to Colorado (54,100 acre-feet), 40% to Kansas (190,300 acre-feet), and 49% to Nebraska (234,500 acre-feet).<ref>Republican River Compact. Pub. L. No. 7860, 57 Stat. 86 (1943). Retrieved from: http://water.state.co.us/DWRIPub/Documents/rrcompact.pdf</ref>
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After the compact was implemented, representatives from each state met periodically to review administrative activities. They also collaborated with federal agencies to develop the surface water resources. In 1949, the parties met to review the comprehensive plan for water conveyance and storage structures and six federal surface irrigation districts were created in the areas served by the projects.<ref>Knox, K. (2004). The allocation of interstate ground water: Evaluation of the Republican River Compact as case study (Doctoral dissertation). Retrieved from: ProQuest Digital Dissertations. (UMI 3143837).</ref>
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Over time the representatives recognized the need for a formal organization with a defined structure and operating rules to facilitate the administration of the compact. In 1959 the Republican River Compact Administration (RRCA) was established and adopted formal Rules and Regulations. There is one member from each state on the RRCA and unanimous votes are required in pass resolutions or other items under consideration. The state representative is typically the Chief Water Engineer or equivalent from each state, though in the early years junior engineers typically filled this role. The early representatives worked with the original negotiators of the compact and carried forward the general camaraderie of that group for many years. The first disagreement in a vote on a resolution did not occur until 1981.<ref>Knox, K. (2004). The allocation of interstate ground water: Evaluation of the Republican River Compact as case study (Doctoral dissertation). Retrieved from: ProQuest Digital Dissertations. (UMI 3143837).</ref>
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===== Conflict Begins =====
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The Republican River Compact operated without major conflict for decades before changing conditions led to series of disputes beginning in the 1980s. The extensive development of groundwater and expansion of irrigated agriculture that occurred in the previous decades was still occurring in Nebraska, though Kansas and Colorado had essentially ended new groundwater development. Kansas repeatedly voiced concerns that Nebraska had allowed excessive development of groundwater irrigation and that groundwater depletion was reducing stream flows to the detriment of Kansas’s water users.<ref>Kansas Department of Agriculture, Division of Water Resources. (2014). Republican River Compact. Retrieved from: https://agriculture.ks.gov/divisions-programs/dwr/interstate-rivers-and-compacts/republican-river-compact</ref> The states disagreed over whether the interaction of groundwater withdrawals on surface water flows is regulated under the compact. The RRCA avoided taking a position on the issue and instead pursued technical investigations to better understand the effects of groundwater pumping, essentially delaying action.<ref>Popelka, A.M. (2005). The Republican River dispute: An analysis of the parties’ compact interpretation and final settlement stipulation. Nebraska Law Review, 83: 597-623.</ref> Between 1987 and 1995, twelve resolutions were proposed on the issue of groundwater inclusion and all failed due to the unanimity rule.<ref>Knox, K. (2004). The allocation of interstate ground water: Evaluation of the Republican River Compact as case study (Doctoral dissertation). Retrieved from: ProQuest Digital Dissertations. (UMI 3143837).</ref>
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In 1995, Kansas and Nebraska began to meet with professional mediators to settle the dispute, but over time it became apparent that the issue could not be resolved. In March 1997, Kansas formally withdrew from the mediation process, thereby ending the first attempt to seek a mutually acceptable resolution.<ref>Knox, K. (2004). The allocation of interstate ground water: Evaluation of the Republican River Compact as case study (Doctoral dissertation). Retrieved from: ProQuest Digital Dissertations. (UMI 3143837).</ref> In 1998, Kansas filed action with the US Supreme Court, which Nebraska responded to by filing a Motion to Dismiss. The case centered on the question of whether the compact restricts a state’s consumption of groundwater. The US Supreme Court appointed a Special Master who held hearings in January 2000.<ref>Final Report of the Special Master, Supreme Court of the United States. (September 2003). Kansas v. Nebraska and Colorado, No. 126 Original. Retrieved from: http://www.supremecourt.gov/SpecMastRpt/Orig126_102003.pdf</ref> The stances of each state were:
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* Kansas argued that groundwater is regulated under the compact and that groundwater pumping depleted surface water levels and deprived Kansas of its full entitlement.
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* Nebraska denied these allegations on the premise that groundwater is not specifically mentioned in the compact.
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* Colorado took an intermediate stance and argued that the compact and historic practices justify the inclusion of groundwater from alluvial aquifers, but not from deep aquifers.
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Just 24 days later, the Special Master made a decisive ruling on the question. He concluded that despite the compact’s silence on the word “groundwater”, the comprehensive definition of virgin water supply requires the inclusion of groundwater and therefore should be included in the calculations of allocation and consumptive use. Thus the compact can be violated through excessive pumping of groundwater that is hydraulically connected to the river and tributaries.<ref>Final Report of the Special Master, Supreme Court of the United States. (September 2003). Kansas v. Nebraska and Colorado, No. 126 Original. Retrieved from: http://www.supremecourt.gov/SpecMastRpt/Orig126_102003.pdf</ref>
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After attempts to counter the ruling failed and at the urging of the Special Master, the states agreed to attempt a negotiated settlement to avoid going to trial. Mediation began in October 2001 with the federal government participating in an advisory capacity. They reached a tentative agreement in April 2002 and presented the final agreement in December, which was approved by the Supreme Court in 2003.<ref>Republican River Water Conservation District. (2009). The Republican River Compact Synopsis. Retrieved from: http://www.republicanriver.com/CompactInfo/RepublicanRiverCompact1942/RepublicanRiverCompactSynopsis/tabid/160/Default.aspx</ref>
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The agreement is formally titled the Final Settlement Stipulation (FSS) and had several key outcomes intended to resolve the current dispute and prevent future disputes. First, the states agreed to waive all claims of violations prior to 2002 – essentially indicating a desire to start fresh. Second they agreed to form a joint committee with representatives from each state to construct a comprehensive ground water model in order to develop new accounting procedures. Nebraska was required to place a moratorium on the construction of new wells in specific areas of the basin. A key feature of the FSS is the creation of mechanisms for future compact administration and dispute resolution, including clarifications and revisions of water accounting procedures, extensive requirements for data sharing, and commitments to take specific actions during water short years when noncompliance is more likely. Finally, the FSS added a dispute resolution system with specific procedures to avoid litigation in the future. This was crucial because the original compact is silent on enforcement and dispute resolution matters.<ref>Final Settlement Stipulation, Supreme Court of the United States. (December 2002). Kansas v. Nebraska and Colorado, No. 126 Original. Retrieved from: http://water.state.co.us/DWRIPub/Documents/RRFSS.pdf</ref>
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===== Conflict Continues =====
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The resolution reached in the FSS in 2003 was short-lived. 2006 was the first water-short year after the settlement where compliance could be measured. According to Kansas, both Nebraska and Colorado were noncompliant and in violation of the compact. Kansas alleged that Nebraska exceeded its allocation by 79,140 acre-feet in 2005 and 2006 and Colorado exceeded its allocation by 50,000 acre-feet between 2003 and 2007. Kansas claimed the noncompliance deprived users in the state and wrote a letter in 2007 to Nebraska proposing that the state immediately reduce groundwater pumping and pay for damages.<ref>Kansas Department of Agriculture, Division of Water Resources. (2014). Republican River Compact. Retrieved from: https://agriculture.ks.gov/divisions-programs/dwr/interstate-rivers-and-compacts/republican-river-compact</ref> The states responded to the allegations of noncompliance differently.
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Colorado acknowledged its overuse and proposed building a pipeline for stream flow augmentation. Negotiations on the pipeline proposed by Colorado began in 2008, but the plan was repeatedly rejected by both Nebraska and Kansas.<ref>Republican River Water Conservation District. (October 2010). Retrieved from: http://www.republicanriver.com/ </ref> Neither state opposed the idea on principle, but Colorado refused to address their concerns or acknowledge the solutions they had proposed. Kansas opposed the plan because it proposed to augment stream flow in a sub-basin downstream of the one deprived by Colorado’s overuse, thus failing to resolve the issue. Kansas also raised concerns that in wet years Colorado would over-deliver and accumulate a large accounting credit that would allow them to under-deliver in dry years without consequence. Nebraska supported Kansas’s concern and was also reluctant to be responsible for delivering the augmented water volume to Kansas.<ref>Kansas Department of Agriculture, Division of Water Resources. (2014). Republican River Compact. Retrieved from: https://agriculture.ks.gov/divisions-programs/dwr/interstate-rivers-and-compacts/republican-river-compact</ref> In 2009, Colorado invoked the nonbinding arbitration process outlined in the FSS dispute resolution system to have an impartial party consider the merits of the proposal. Arbitration began in March 2010 and the arbitrator found that Kansas had not acted unreasonably in denying the pipeline as proposed.<ref>Republican River Water Conservation District. (October 2010). Retrieved from: http://www.republicanriver.com/ </ref> In 2013, the states reached a temporary agreement that allowed Colorado to use the pipeline in 2014 while they continued to discuss the issue in more depth.
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Meanwhile, Nebraska did not agree to the proposal outlined by Kansas, though the state did not try to deny that it was noncompliant. Instead, the dispute revolved around how the noncompliance should be handled. Nebraska and Kansas entered the nonbinding arbitration process for dispute resolution, which concluded in 2009. The arbitrator’s opinion was that Kansas did not fulfill the burden of proof necessary in order to be awarded damages and recommended that Nebraska pay nominal compensation to Kansas. Kansas rejected the recommendation of the arbitrator and having exhausted all dispute resolution options under the compact process, again filed action with the US Supreme Court against Nebraska in May 2010.<ref>Kansas Department of Agriculture, Division of Water Resources. (2014). Republican River Compact. Retrieved from: https://agriculture.ks.gov/divisions-programs/dwr/interstate-rivers-and-compacts/republican-river-compact</ref> It’s worth noting that at this point, the compact states were involved in multiple and simultaneous non-binding arbitration and litigation procedures to resolve multiple disputes.
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In the US Supreme Court case Kansas v. Nebraska and Colorado, Kansas alleged that Nebraska had violated the compact and failed to take necessary steps to avoid future violations. The lawsuit litigated three main issues:<ref>Kansas v. Nebraska and Colorado, No. 126 Original. 574 U.S. ___ (2015). Retrieved from: http://www.supremecourt.gov/opinions/14pdf/126orig_olq2.pdf</ref>
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* Damages for past non-compliance. Kansas argued that the damages amounted to $80 million and that damages should be paid both on the losses to Kansas and the gains to Nebraska from using water it was not entitled to. Nebraska argued that the damages were worth $0-2 million and only losses to Kansas should be awarded.
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* Injunctive relief to ensure future compliance. Kansas requested a permanent end to groundwater pumping on 300,000 acres of land in Nebraska and asked that a federal river master be appointed to administer the compact. Nebraska argued that it had taken adequate steps through state legislation since the noncompliant years to ensure future compliance.
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* Accounting procedures for interbasin water transfers. Nebraska and Colorado argued that the Accounting Procedures should be changed to exclude imported water from consumption calculations because the omission in the accounting was an oversight and the water supply models are wrong. Kansas argued that “a deal is a deal” and the procedures should not change.
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A Special Master first heard the case and made recommendations. Then the court heard arguments in October 2014 and issued an opinion in February 2015 in a 6-3 decision in which it adopted the recommendations of the Special Master. The court ruled that Nebraska had “knowingly failed” to comply with the compact and awarded Kansas $5.5 million in damages, including $3.7 million for losses and $1.8 million for partial disgorgement of Nebraska’s gains – the first time that damages have been awarded for more than just losses. The majority noted that, “truth be told, we cannot be sure why the Master selected the exact number he did – why, that is, he arrived at $1.8 million, rather than a little more or a little less. The court ruled against injunctive relief noting that Nebraska’s recent actions are sufficient to ensure current and future compliance and that the state had put the tools in place to reduce groundwater demand. The court also ruled that the Accounting Procedures should be changed since the issue is a result of a mutual mistake in the previous settlement.<ref>Kansas v. Nebraska and Colorado, No. 126 Original. 574 U.S. ___ (2015). Retrieved from: http://www.supremecourt.gov/opinions/14pdf/126orig_olq2.pdf</ref>
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While both states claimed victory, it is clear that neither state got what it wanted and Kansas in particular got far less than the extensive damages it asked for. The opinion issued by the Supreme Court was controversial and may set precedent for handling future disputes over interstate waters. The Court’s decision essentially endorses giving expansive powers to Court-appointed special masters to resolve disputes, who may have little contextual and technical knowledge on the issue. In light of the outcome in this case, states may recognize that they are better off resolving their own disputes in the future.
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===== Current Status of the Compact and Conflict – Moving Forward =====
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A noticeable shift in the approach to compact administration and dispute resolution has occurred. Even before the final ruling in Kansas v. Nebraska and Colorado, the three states began to work together and multiple agreements have been reached through collaborative negotiation since October 2014. The agreements address allocations for upcoming years as the states work towards a long-term agreement. The RRCA has met more frequently to address persistent problems and work to understand the issues each state is facing and the needs of their water users. The meetings and agreements have focused on finding ways to provide Nebraska with greater flexibility to comply with the compact, while providing greater reliability and certainty to water users in Kansas that they will get their deliveries. A key issue is finding ways to reduce water use in water short years, while providing enough notice to water users that compliance mechanisms will be implemented for their planning purposes. Another issue is that upstream states need to be allowed to pursue creative options to meet their water delivery obligations without being overly constrained by compact terms that were written in an era of substantially different conditions and technologies. The states are hopeful that the new approach and spirit of collaboration will continue and future litigation can be avoided.<ref>Kansas Department of Agriculture, Division of Water Resources. (17 August 2015). Colorado, Kansas, and Nebraska water agreement further helps water users. Retrieved from: http://agriculture.ks.gov/AllNewsItems/2015/08/27/colorado-kansas-nebraska-water-agreement-further-helps-water-users</ref>
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|Summary=The key issues currently facing the Republican River Compact are (1) the effective enforcement of the compact and appropriate penalties for violations and (2) adapting the existing agreement to resolve emerging problems for the benefit of all water users. The Republican River Basin is shared by the states of Colorado, Kansas, and Nebraska. Since the compact was originally negotiated in the early 1940s, groundwater levels and stream flows have declined due to changes in climate conditions and the substantial development of groundwater resources and expansion of irrigated agriculture. Over the past 25 years, upstream riparians have struggled to comply with the water allocations set forth in the compact and downstream users have been deprived of their allotments resulting in many disputes and two US Supreme Court actions. Here we find that the  mechanisms used for dispute resolution, the lack of trust amongst stakeholders, and the rigid interpretation of compact terms hindered the ability to seek mutually agreeable solutions. After long and costly litigation procedures resulted in unsatisfactory outcomes, the states have recommitted to using a negotiated approach to addressing the problems in the basin in way that benefits all users. Since October 2014, they have reached a series of short-term agreements by engaging in frequent negotiations to explore mutual interests and rebuild trust.
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The key questions addressed in this case study are: (1) How can mutual trust amongst riparians be nurtured? And (2) What actions erode that trust? Here we identify key actions that eroded trust during the disputes of the past 25 years and recent actions that have enabled the stakeholders to begin rebuilding trust after the latest US Supreme Court case. The Republican River Compact disputes illustrate that effective dispute resolution mechanisms and clear guidelines for enforcing and adapting existing agreements are essential for a mutual gains approach to water governance.
 
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Latest revision as of 13:32, 20 December 2015

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Case Description
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Geolocation: 40° 2' 41.8677", -101° 33' 31.2843"
Total Area 64,79064,790 km²
25,015.419 mi² km2
Climate Descriptors Semi-arid/steppe (Köppen B-type)
Predominent Land Use Descriptors agricultural- cropland and pasture
Important Uses of Water Agriculture or Irrigation, Domestic/Urban Supply, Livestock, Recreation or Tourism

Summary

The key issues currently facing the Republican River Compact are (1) the effective enforcement of the compact and appropriate penalties for violations and (2) adapting the existing agreement to resolve emerging problems for the benefit of all water users. The Republican River Basin is shared by the states of Colorado, Kansas, and Nebraska. Since the compact was originally negotiated in the early 1940s, groundwater levels and stream flows have declined due to changes in climate conditions and the substantial development of groundwater resources and expansion of irrigated agriculture. Over the past 25 years, upstream riparians have struggled to comply with the water allocations set forth in the compact and downstream users have been deprived of their allotments resulting in many disputes and two US Supreme Court actions. Here we find that the mechanisms used for dispute resolution, the lack of trust amongst stakeholders, and the rigid interpretation of compact terms hindered the ability to seek mutually agreeable solutions. After long and costly litigation procedures resulted in unsatisfactory outcomes, the states have recommitted to using a negotiated approach to addressing the problems in the basin in way that benefits all users. Since October 2014, they have reached a series of short-term agreements by engaging in frequent negotiations to explore mutual interests and rebuild trust.

The key questions addressed in this case study are: (1) How can mutual trust amongst riparians be nurtured? And (2) What actions erode that trust? Here we identify key actions that eroded trust during the disputes of the past 25 years and recent actions that have enabled the stakeholders to begin rebuilding trust after the latest US Supreme Court case. The Republican River Compact disputes illustrate that effective dispute resolution mechanisms and clear guidelines for enforcing and adapting existing agreements are essential for a mutual gains approach to water governance.



Natural, Historic, Economic, Regional, and Political Framework

Timeline

  • Early 1870s – settlement of the basin by pioneers following the Homestead Act of 1862
  • 1930s – Dust Bowl and extended drought prompts interest in developing surface water resources
  • 1934 – Colorado and Nebraska attempt to negotiate an interstate compact for the first time; Kansas refuses to be party to the compact
  • 1935 – devastating flood along the Republican River in Nebraska
  • 1940s – Colorado, Kansas, and Nebraska enter into negotiations of interstate compact to allocate and develop shared water resources in the basin
  • 1941 – proposed compact is ratified by the state legislatures, consented to by Congress, but vetoed by President Roosevelt
  • 1943 – compact is revised to satisfy the federal government and the states officially entered into the Republican River Compact
  • 1949 – representatives of the compact states meet with the Bureau of Reclamation and the US Army Corps of Engineers to review a comprehensive plan for water conveyance and storage in the basin, construction continues through the 1970s
  • 1959 – Republican River Compact Administration (RRCA) is created
  • 1980s – Kansas begins to raise concerns about impact of groundwater pumping on compact compliance, concerns are largely disregarded by the other parties
  • 1995-1997 – Kansas and Nebraska attempt to resolve compliance issues through mediation
  • 1998 – Kansas files complaint with the US Supreme Court against Nebraska alleging compact violation, Nebraska denies allegations
  • 1999-2000 – US Supreme Court appoints a special master who holds hearings and makes a decisive ruling in the case, states engage in formal mediation to avoid going to trial
  • 2002 – the three states negotiate the Final Settlement Stipulation (FSS) agreement
  • 2003 – US Supreme Court approves the FSS
  • 2006 – Kansas again raises concerns about noncompliance in Nebraska and Colorado
  • 2008 – RRCA submits disputes over noncompliance to non-binding arbitration
  • 2009 – arbitrator releases final decision, but the states reject the decision
  • 2010 – Kansas files original action in US Supreme Court against Nebraska and Colorado
  • 2011 – Court grants Kansas’ motion to appoint a special master
  • 2013 – Special master issues report of findings and recommendations in Kansas v. Nebraska and Colorado
  • October 2014 – US Supreme Court hears arguments in the case, meanwhile the states reach a negotiated solution to allocations for 2015 irrigation season
  • February 2015 – US Supreme Court issues opinion on Kansas v. Nebraska and Colorado, requiring Nebraska to pay $5.5 million to Kansas for losses due to compact violation
  • 2015 – states reach temporary agreement for next two irrigation years and continue to work towards a long-term agreement

Ecological and Geographical Background

Summary

The Republican River basin drains approximately 25,000 square miles of land in northeastern Colorado, southwestern and south-central Nebraska, and northwestern and north-central Kansas. The headwaters originate in the high plains of the western portion of the basin and the Republican River is formed by the confluence of the North Fork Republican River and the Arikaree River. The river flows east 453 miles before eventually joining the Smoky Hill River to form the Kansas River.[1] The geography of the basin is such that Kansas is both upstream and downstream of Nebraska creating an interesting interdependence on each other’s decisions.

River Flow and Key Sources

The key sources of water in the basin include both surface and groundwater sources. The predominant source of groundwater is the High Plains Aquifer, which underlies most of the basin. Additionally, there are alluvial aquifers that discharge groundwater into the tributary streams within the basin. The interaction between surface and groundwater has been a source of conflict within the basin as groundwater depletion has reduced stream flows.

The flow of the river is highly variable along its length, from season to season, and from year to year. This is due to both the climate conditions of the area and the impacts of human use and water development in the basin. The climate of the basin ranges from semi-arid in the western portion to sub-humid in the eastern portion. The area is characterized by highly erratic climate conditions in terms of both temperature and precipitation due to its central location on the continent and position on the leeward side of the Rocky Mountains. It is also subject to extended droughts and intense rainfall events. Annual rainfalls range from an average of 15 inches in the western portion to 25 inches in the eastern portion, though this can vary substantially from year to year.[2]

Stream flows in the basin have declined over time, which has been attributed to several human factors in addition to climate considerations and recent periods of drought. One of these factors is reduced runoff as a result of conservation and land management practices. Another key factor is the development of groundwater resources and increased pumping for irrigated agriculture.[3] Until the 1950s, surface water was the primary source of irrigation water. With the invention of new irrigation technologies and well drilling methods came an expansion of irrigated land and reliance on groundwater resources. In 1940, there were an estimated 30,788 acres of irrigated land in the basin. Irrigated land had increased to 1,263,809 acres by 1970 and 2,757,110 acres by 2000.[4] Expansion of irrigated land and groundwater development occurred in all three states, but was significantly larger in Nebraska than in Colorado or Kansas.

Manmade Diversions

Water diversion structures exist in the Republican River basin largely to support agriculture in the basin. Though surface water development started in the late 1800s, very few water storage or flood control structures existed before the compact. After its approval, the states collaborated with the federal government to develop the surface waters of the basin through a series of Reclamation projects. Currently, there are seven Bureau of Reclamation dams and reservoirs, two Army Corps of Engineers reservoirs and twelve major canals for surface water delivery. In total, the reservoirs have the capacity to store 1.7 million acre-feet of water. Today, the reservoirs serve multiple purposes including flood control, water storage, irrigation, recreation, and support for wildlife.[5]

More recently, three augmentation pipelines have been constructed by Nebraska and Colorado to meet water delivery obligations to Kansas by piping groundwater from outside of the basin into tributary streams within the basin. In Nebraska, the Rock Creek augmentation pipeline began operating in 2013 and the Nebraska Cooperative Republican Platte Enhancement (NCORPE) pipeline started in 2014.[6] The Compact Compliance Pipeline in Colorado began delivering water in 2014. Also in Colorado, the Bonny Reservoir was drained in 2011 to meet water deliveries under the compact and is now a designated wildlife area.[7] These recent efforts have helped Nebraska and Colorado comply with the compact, but have been controversial.

Other Natural Considerations

The Republican River basin is also home to some endangered and threatened species that are protected under federal law, including the whooping crane, peregrine falcon, and bald eagle. The basin also provides crucial habitat for migratory birds such as ducks, geese, and Sandhill cranes.

Social, Economic, and Cultural Context

The water conflict in the Republican River basin has not been driven by differences in socioeconomic or cultural factors. The three states and the water users in each state are very similar in terms of socioeconomic status and culture. The population within the basin is estimated at 92,498. Population has remained largely unchanged in Nebraska and Kansas, but in the Colorado portion of the basin the population increased 31% from 1990-2000 and is projected to increase an additional 65% by 2030.[8] This trend may lead to increased conflict among water users in the Colorado portion of the basin.

Agriculture is the predominant economic activity in all areas of the basin and therefore ensuring continued access to irrigation water is crucial to all three states and the local communities within the area.

Governmental, Political, and Legal Context

Early Development of the Basin

The United States acquired the land that includes the Republican River basin from France in 1803. Settlement of the area was very slow until after the Civil War and there was little human presence in the basin outside of the American Indian tribes. Driven by post-war westward expansion, the Homestead Act of 1862, and construction of the railroads, rapid settlement occurred through the late 1800s and early 1900s. During this time period, some private development of surface water in the basin occurred, but settlers soon realized the irrigation potential of the river had been overstated. The total supply of water was inadequate to support extensive irrigation, the large seasonal fluctuation in flows meant water was not available when it was needed, and the climate was unpredictable.[9]

As the effects of the Dust Bowl and drought of the 1930s worsened, public interest in building structures to store and convey water grew. State officials turned to the federal government for assistance in developing the basin. Under the Reclamation Act of 1902, Congress authorized federal support for flood control and land reclamation projects, but as a result of widespread interstate water conflicts in the west some of this support was conditional on resolving transboundary disputes. Thus, in 1934 Colorado and Nebraska tried to negotiate an interstate river compact in order to receive federal funding for water storage projects on the Republican River. Kansas refused to join the compact unless a reservoir would be proposed on the South Fork of the river. Colorado and Nebraska proceeded without Kansas, engaging in intermittent negotiations and conducting hearings with water users in their states.[10]

By May 1935, an agreement was drafted and the parties appeared to be close to agreeing when disaster struck. A series of high intensity precipitation events after years of drought lead to a devastating flood along the river in Nebraska. Officials estimated that 113 people were killed; over 74,000 acres of farmland were inundated, and up to 40,000 head of cattle were killed. Additionally, 341 miles of highway and 307 bridges were destroyed.[11] Nebraska ceased pursuit of the project with Colorado and negotiations officially ended in January 1937 without an agreement. However, interest in a compact and surface water development projects resumed over the next few years as the same challenges the existed before the flood were still present and the need for flood control become more urgent.[12]

Compact Negotiations

In May 1940, negotiations began between Colorado, Kansas, and Nebraska to create an interstate river compact. In the second attempt at an agreement, Colorado and Nebraska recognized the need to include all states in the basin. The states were increasingly interested in expanding irrigated acreage and surface water development in order to mitigate the effects of droughts and floods in the future after witnessing the devastation caused in the 1930s. They also recognized the need to draft a compact and agree on apportionment of the water in the basin before federal reclamation projects could be undertaken.[13]

During the negotiations, no federal representative was requested or appointed to participate. In March 1941 a proposed compact was signed by the state representatives and ratified by the state legislatures. Interstate compacts also require consent by the federal government so the ratified agreement was introduced in Congress. Congress consented to the agreement, but President Franklin D. Roosevelt vetoed it due to objections by some federal agencies. The compact was renegotiated, this time with the involvement of a federal representative. In 1943, the final Republican River Compact was approved by the federal government and took affect in the basin.[14]

The major purposes outlined in the compact include: (1) to provide for the most efficient use of the waters for multiple purposes and recognize that the most efficient utilization is for beneficial consumptive use; (2) to provide for an equitable division of waters; (3) to remove all causes which might lead to controversy; (4) to promote interstate comity; and (5) to promote join action by the states and the US in the efficient use of water and control of destructive floods. The federal government does not have administrative authority in the compact, but it does have a role in providing collaborative assistance from the Bureau of Reclamation, US Geological Survey, and other agencies.[15]

The main outcome of the compact was the allocation of the virgin water supply of the basin for beneficial consumptive use. The compact makes specific annual allocations for each sub-basin and includes provisions to make proportional adjustments to allocations when supply is more than ten percent below or above the average established in the compact. The amount of surface water available for allocation was determined based on eleven years of stream discharge records at various locations in the basin. The compact allocates 11% of the basin surface water to Colorado (54,100 acre-feet), 40% to Kansas (190,300 acre-feet), and 49% to Nebraska (234,500 acre-feet).[16]

After the compact was implemented, representatives from each state met periodically to review administrative activities. They also collaborated with federal agencies to develop the surface water resources. In 1949, the parties met to review the comprehensive plan for water conveyance and storage structures and six federal surface irrigation districts were created in the areas served by the projects.[17]

Over time the representatives recognized the need for a formal organization with a defined structure and operating rules to facilitate the administration of the compact. In 1959 the Republican River Compact Administration (RRCA) was established and adopted formal Rules and Regulations. There is one member from each state on the RRCA and unanimous votes are required in pass resolutions or other items under consideration. The state representative is typically the Chief Water Engineer or equivalent from each state, though in the early years junior engineers typically filled this role. The early representatives worked with the original negotiators of the compact and carried forward the general camaraderie of that group for many years. The first disagreement in a vote on a resolution did not occur until 1981.[18]

Conflict Begins

The Republican River Compact operated without major conflict for decades before changing conditions led to series of disputes beginning in the 1980s. The extensive development of groundwater and expansion of irrigated agriculture that occurred in the previous decades was still occurring in Nebraska, though Kansas and Colorado had essentially ended new groundwater development. Kansas repeatedly voiced concerns that Nebraska had allowed excessive development of groundwater irrigation and that groundwater depletion was reducing stream flows to the detriment of Kansas’s water users.[19] The states disagreed over whether the interaction of groundwater withdrawals on surface water flows is regulated under the compact. The RRCA avoided taking a position on the issue and instead pursued technical investigations to better understand the effects of groundwater pumping, essentially delaying action.[20] Between 1987 and 1995, twelve resolutions were proposed on the issue of groundwater inclusion and all failed due to the unanimity rule.[21]

In 1995, Kansas and Nebraska began to meet with professional mediators to settle the dispute, but over time it became apparent that the issue could not be resolved. In March 1997, Kansas formally withdrew from the mediation process, thereby ending the first attempt to seek a mutually acceptable resolution.[22] In 1998, Kansas filed action with the US Supreme Court, which Nebraska responded to by filing a Motion to Dismiss. The case centered on the question of whether the compact restricts a state’s consumption of groundwater. The US Supreme Court appointed a Special Master who held hearings in January 2000.[23] The stances of each state were:

  • Kansas argued that groundwater is regulated under the compact and that groundwater pumping depleted surface water levels and deprived Kansas of its full entitlement.
  • Nebraska denied these allegations on the premise that groundwater is not specifically mentioned in the compact.
  • Colorado took an intermediate stance and argued that the compact and historic practices justify the inclusion of groundwater from alluvial aquifers, but not from deep aquifers.

Just 24 days later, the Special Master made a decisive ruling on the question. He concluded that despite the compact’s silence on the word “groundwater”, the comprehensive definition of virgin water supply requires the inclusion of groundwater and therefore should be included in the calculations of allocation and consumptive use. Thus the compact can be violated through excessive pumping of groundwater that is hydraulically connected to the river and tributaries.[24]

After attempts to counter the ruling failed and at the urging of the Special Master, the states agreed to attempt a negotiated settlement to avoid going to trial. Mediation began in October 2001 with the federal government participating in an advisory capacity. They reached a tentative agreement in April 2002 and presented the final agreement in December, which was approved by the Supreme Court in 2003.[25]

The agreement is formally titled the Final Settlement Stipulation (FSS) and had several key outcomes intended to resolve the current dispute and prevent future disputes. First, the states agreed to waive all claims of violations prior to 2002 – essentially indicating a desire to start fresh. Second they agreed to form a joint committee with representatives from each state to construct a comprehensive ground water model in order to develop new accounting procedures. Nebraska was required to place a moratorium on the construction of new wells in specific areas of the basin. A key feature of the FSS is the creation of mechanisms for future compact administration and dispute resolution, including clarifications and revisions of water accounting procedures, extensive requirements for data sharing, and commitments to take specific actions during water short years when noncompliance is more likely. Finally, the FSS added a dispute resolution system with specific procedures to avoid litigation in the future. This was crucial because the original compact is silent on enforcement and dispute resolution matters.[26]

Conflict Continues

The resolution reached in the FSS in 2003 was short-lived. 2006 was the first water-short year after the settlement where compliance could be measured. According to Kansas, both Nebraska and Colorado were noncompliant and in violation of the compact. Kansas alleged that Nebraska exceeded its allocation by 79,140 acre-feet in 2005 and 2006 and Colorado exceeded its allocation by 50,000 acre-feet between 2003 and 2007. Kansas claimed the noncompliance deprived users in the state and wrote a letter in 2007 to Nebraska proposing that the state immediately reduce groundwater pumping and pay for damages.[27] The states responded to the allegations of noncompliance differently.

Colorado acknowledged its overuse and proposed building a pipeline for stream flow augmentation. Negotiations on the pipeline proposed by Colorado began in 2008, but the plan was repeatedly rejected by both Nebraska and Kansas.[28] Neither state opposed the idea on principle, but Colorado refused to address their concerns or acknowledge the solutions they had proposed. Kansas opposed the plan because it proposed to augment stream flow in a sub-basin downstream of the one deprived by Colorado’s overuse, thus failing to resolve the issue. Kansas also raised concerns that in wet years Colorado would over-deliver and accumulate a large accounting credit that would allow them to under-deliver in dry years without consequence. Nebraska supported Kansas’s concern and was also reluctant to be responsible for delivering the augmented water volume to Kansas.[29] In 2009, Colorado invoked the nonbinding arbitration process outlined in the FSS dispute resolution system to have an impartial party consider the merits of the proposal. Arbitration began in March 2010 and the arbitrator found that Kansas had not acted unreasonably in denying the pipeline as proposed.[30] In 2013, the states reached a temporary agreement that allowed Colorado to use the pipeline in 2014 while they continued to discuss the issue in more depth.

Meanwhile, Nebraska did not agree to the proposal outlined by Kansas, though the state did not try to deny that it was noncompliant. Instead, the dispute revolved around how the noncompliance should be handled. Nebraska and Kansas entered the nonbinding arbitration process for dispute resolution, which concluded in 2009. The arbitrator’s opinion was that Kansas did not fulfill the burden of proof necessary in order to be awarded damages and recommended that Nebraska pay nominal compensation to Kansas. Kansas rejected the recommendation of the arbitrator and having exhausted all dispute resolution options under the compact process, again filed action with the US Supreme Court against Nebraska in May 2010.[31] It’s worth noting that at this point, the compact states were involved in multiple and simultaneous non-binding arbitration and litigation procedures to resolve multiple disputes.

In the US Supreme Court case Kansas v. Nebraska and Colorado, Kansas alleged that Nebraska had violated the compact and failed to take necessary steps to avoid future violations. The lawsuit litigated three main issues:[32]

  • Damages for past non-compliance. Kansas argued that the damages amounted to $80 million and that damages should be paid both on the losses to Kansas and the gains to Nebraska from using water it was not entitled to. Nebraska argued that the damages were worth $0-2 million and only losses to Kansas should be awarded.
  • Injunctive relief to ensure future compliance. Kansas requested a permanent end to groundwater pumping on 300,000 acres of land in Nebraska and asked that a federal river master be appointed to administer the compact. Nebraska argued that it had taken adequate steps through state legislation since the noncompliant years to ensure future compliance.
  • Accounting procedures for interbasin water transfers. Nebraska and Colorado argued that the Accounting Procedures should be changed to exclude imported water from consumption calculations because the omission in the accounting was an oversight and the water supply models are wrong. Kansas argued that “a deal is a deal” and the procedures should not change.

A Special Master first heard the case and made recommendations. Then the court heard arguments in October 2014 and issued an opinion in February 2015 in a 6-3 decision in which it adopted the recommendations of the Special Master. The court ruled that Nebraska had “knowingly failed” to comply with the compact and awarded Kansas $5.5 million in damages, including $3.7 million for losses and $1.8 million for partial disgorgement of Nebraska’s gains – the first time that damages have been awarded for more than just losses. The majority noted that, “truth be told, we cannot be sure why the Master selected the exact number he did – why, that is, he arrived at $1.8 million, rather than a little more or a little less. The court ruled against injunctive relief noting that Nebraska’s recent actions are sufficient to ensure current and future compliance and that the state had put the tools in place to reduce groundwater demand. The court also ruled that the Accounting Procedures should be changed since the issue is a result of a mutual mistake in the previous settlement.[33]

While both states claimed victory, it is clear that neither state got what it wanted and Kansas in particular got far less than the extensive damages it asked for. The opinion issued by the Supreme Court was controversial and may set precedent for handling future disputes over interstate waters. The Court’s decision essentially endorses giving expansive powers to Court-appointed special masters to resolve disputes, who may have little contextual and technical knowledge on the issue. In light of the outcome in this case, states may recognize that they are better off resolving their own disputes in the future.

Current Status of the Compact and Conflict – Moving Forward

A noticeable shift in the approach to compact administration and dispute resolution has occurred. Even before the final ruling in Kansas v. Nebraska and Colorado, the three states began to work together and multiple agreements have been reached through collaborative negotiation since October 2014. The agreements address allocations for upcoming years as the states work towards a long-term agreement. The RRCA has met more frequently to address persistent problems and work to understand the issues each state is facing and the needs of their water users. The meetings and agreements have focused on finding ways to provide Nebraska with greater flexibility to comply with the compact, while providing greater reliability and certainty to water users in Kansas that they will get their deliveries. A key issue is finding ways to reduce water use in water short years, while providing enough notice to water users that compliance mechanisms will be implemented for their planning purposes. Another issue is that upstream states need to be allowed to pursue creative options to meet their water delivery obligations without being overly constrained by compact terms that were written in an era of substantially different conditions and technologies. The states are hopeful that the new approach and spirit of collaboration will continue and future litigation can be avoided.[34]

Issues and Stakeholders

How will the water allocations defined under the compact be enforced and how should non-compliance be penalized?

NSPD: Water Quantity, Governance, Values and Norms
Stakeholder Types: Federated state/territorial/provincial government, Sovereign state/national/federal government, Local Government, Non-legislative governmental agency, Community or organized citizens

Stakeholders: State governments of Colorado, Kansas, and Nebraska; natural resource groundwater management districts; federal surface irrigation districts; local surface and ground water irrigators; local communities; and the Bureau of Reclamation (federal government agency)

Stakeholders are concerned about the ability of states to comply with the compact given past violations and growing stress on the virgin water supply. Water users in Kansas, who have been deprived of their entitlement in the past, want to see stronger enforcement of the compact and strict repercussions for non-compliance such as compensation for damages and disgorgement of gains to other users that result from overusing water in the basin. Upstream water users in Colorado and Nebraska are concerned that compliance efforts or non-compliance penalties will essentially halt irrigated agriculture in the area and in turn harm farmers and entire communities that are dependent on the agriculture sector. They are also concerned that they do not receive enough advanced notice about the implementation of compliance mechanisms to adjust and plan for water short years.

The compact was written in an era of substantially different conditions and less pressing concern about water scarcity. How can flexibility be built into the compact and the administrative structure to enable the agreement to evolve in response to changing conditions?

NSPD: Water Quantity, Governance, Values and Norms
Stakeholder Types: Federated state/territorial/provincial government, Sovereign state/national/federal government, Local Government, Non-legislative governmental agency, Community or organized citizens

Stakeholders: State governments of Colorado, Kansas, and Nebraska; natural resource groundwater management districts; local surface and ground water irrigators; federal surface irrigation districts; and the Bureau of Reclamation (federal government agency)

During the compact disputes of the past 20 years, there has been limited effort to amend the compact so that it can better address current concerns. The states have been hesitant to consider any actions that may cause the water accounting books not being strictly balanced and therefore result in allegations of non-compliance. Working within the strict interpretation of the original compact and water accounting procedures limits the ability to consider creative options to better meet all parties’ needs.


Analysis, Synthesis, and Insight

What is an ASI?

Individuals may add their own Analysis, Synthesis, and Insight (ASI) to a case. ASI sub-articles are protected, so that each contributor retains authorship and control of their own content. Edit the case to add your own ASI.

Learn more

ASI:The Importance of Trust in the Republican River Compact

The history of the Republican River basin is characterized by periodic conflict. The presence and absence of mutual trust plays an essential role in both the successes and failings of the Republican River Compact to address this conflict. What role does trust play in transboundary water agreements and what actions can nurture or erode this trust?(read the full article... )

Contributed by: Ashley M. (last edit: 20 December 2015)




Key Questions

Transboundary Water Issues: How can mutual trust amongst riparians be nurtured? What actions erode that 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.

Recent efforts in the basin demonstrate how trust can be nurtured or rebuilt. In the Republican River Compact three key actions can be identified: (1) the compact administration committed to meeting more frequently to better understand the concerns and interests of each state, (2) Nebraska thoroughly explained the steps and mechanisms it had put in place to avoid overuse in water short years to ease Kansas’ concerns about future noncompliance, and (3) the recently negotiated agreements are temporary, allowing for time to test new options without a binding commitment and continue negotiating a long-term agreement that works for everyone.




  1. ^ Bjerke, R. (2009). Stakeholder perceptions of water supply management and sustainability in the Republican River basin in Nebraska. University of Nebraska-Lincoln. School of Natural Resources.
  2. ^ US Geological Survey, Kansas Water Science Center. (March 1997). Major components of flow in the Republican River during drought conditions. Fact Sheet 234-96. Retrieved from: http://ks.water.usgs.gov/pubs/fact-sheets/fs.234.96.hansen.html.
  3. ^ Nebraska Department of Natural Resources. (June 2006). Hydrologic trends and correlations in the Republican River basin in Nebraska. Retrieved from: http://dnr.nebraska.gov/Media/iwm/PDF/RepublicanRiverBasinReport.pdf
  4. ^ Final Report of the Special Master, Supreme Court of the United States. (September 2003). Kansas v. Nebraska and Colorado, No. 126 Original. Retrieved from: http://www.supremecourt.gov/SpecMastRpt/Orig126_102003.pdf
  5. ^ Kansas Department of Agriculture, Division of Water Resources. (2014). Republican River Compact. Retrieved from: https://agriculture.ks.gov/divisions-programs/dwr/interstate-rivers-and-compacts/republican-river-compact
  6. ^ Nebraska Cooperative Republican Platte Enhancement. (2015). Retrieved from: http://www.ncorpe.org/history
  7. ^ Republican River Water Conservation District. (October 2010). Retrieved from: http://www.republicanriver.com/
  8. ^ US Census Bureau, Population Division. (2009). Population estimates and projections. Retrieved from: http://www.census.gov/population
  9. ^ Bjerke, R. (2009). Stakeholder perceptions of water supply management and sustainability in the Republican River basin in Nebraska. University of Nebraska-Lincoln. School of Natural Resources.
  10. ^ Knox, K. (2004). The allocation of interstate ground water: Evaluation of the Republican River Compact as case study (Doctoral dissertation). Retrieved from: ProQuest Digital Dissertations. (UMI 3143837).
  11. ^ National Drought Mitigation Center. Republican River Basin Water and Drought Portal. (2010). Retrieved from: http://www.rrbdp.org.
  12. ^ Knox, K. (2004). The allocation of interstate ground water: Evaluation of the Republican River Compact as case study (Doctoral dissertation). Retrieved from: ProQuest Digital Dissertations. (UMI 3143837).
  13. ^ Knox, K. (2004). The allocation of interstate ground water: Evaluation of the Republican River Compact as case study (Doctoral dissertation). Retrieved from: ProQuest Digital Dissertations. (UMI 3143837).
  14. ^ Republican River Water Conservation District. (2009). The Republican River Compact Synopsis. Retrieved from: http://www.republicanriver.com/CompactInfo/RepublicanRiverCompact1942/RepublicanRiverCompactSynopsis/tabid/160/Default.aspx
  15. ^ Republican River Compact. Pub. L. No. 7860, 57 Stat. 86 (1943). Retrieved from: http://water.state.co.us/DWRIPub/Documents/rrcompact.pdf
  16. ^ Republican River Compact. Pub. L. No. 7860, 57 Stat. 86 (1943). Retrieved from: http://water.state.co.us/DWRIPub/Documents/rrcompact.pdf
  17. ^ Knox, K. (2004). The allocation of interstate ground water: Evaluation of the Republican River Compact as case study (Doctoral dissertation). Retrieved from: ProQuest Digital Dissertations. (UMI 3143837).
  18. ^ Knox, K. (2004). The allocation of interstate ground water: Evaluation of the Republican River Compact as case study (Doctoral dissertation). Retrieved from: ProQuest Digital Dissertations. (UMI 3143837).
  19. ^ Kansas Department of Agriculture, Division of Water Resources. (2014). Republican River Compact. Retrieved from: https://agriculture.ks.gov/divisions-programs/dwr/interstate-rivers-and-compacts/republican-river-compact
  20. ^ Popelka, A.M. (2005). The Republican River dispute: An analysis of the parties’ compact interpretation and final settlement stipulation. Nebraska Law Review, 83: 597-623.
  21. ^ Knox, K. (2004). The allocation of interstate ground water: Evaluation of the Republican River Compact as case study (Doctoral dissertation). Retrieved from: ProQuest Digital Dissertations. (UMI 3143837).
  22. ^ Knox, K. (2004). The allocation of interstate ground water: Evaluation of the Republican River Compact as case study (Doctoral dissertation). Retrieved from: ProQuest Digital Dissertations. (UMI 3143837).
  23. ^ Final Report of the Special Master, Supreme Court of the United States. (September 2003). Kansas v. Nebraska and Colorado, No. 126 Original. Retrieved from: http://www.supremecourt.gov/SpecMastRpt/Orig126_102003.pdf
  24. ^ Final Report of the Special Master, Supreme Court of the United States. (September 2003). Kansas v. Nebraska and Colorado, No. 126 Original. Retrieved from: http://www.supremecourt.gov/SpecMastRpt/Orig126_102003.pdf
  25. ^ Republican River Water Conservation District. (2009). The Republican River Compact Synopsis. Retrieved from: http://www.republicanriver.com/CompactInfo/RepublicanRiverCompact1942/RepublicanRiverCompactSynopsis/tabid/160/Default.aspx
  26. ^ Final Settlement Stipulation, Supreme Court of the United States. (December 2002). Kansas v. Nebraska and Colorado, No. 126 Original. Retrieved from: http://water.state.co.us/DWRIPub/Documents/RRFSS.pdf
  27. ^ Kansas Department of Agriculture, Division of Water Resources. (2014). Republican River Compact. Retrieved from: https://agriculture.ks.gov/divisions-programs/dwr/interstate-rivers-and-compacts/republican-river-compact
  28. ^ Republican River Water Conservation District. (October 2010). Retrieved from: http://www.republicanriver.com/
  29. ^ Kansas Department of Agriculture, Division of Water Resources. (2014). Republican River Compact. Retrieved from: https://agriculture.ks.gov/divisions-programs/dwr/interstate-rivers-and-compacts/republican-river-compact
  30. ^ Republican River Water Conservation District. (October 2010). Retrieved from: http://www.republicanriver.com/
  31. ^ Kansas Department of Agriculture, Division of Water Resources. (2014). Republican River Compact. Retrieved from: https://agriculture.ks.gov/divisions-programs/dwr/interstate-rivers-and-compacts/republican-river-compact
  32. ^ Kansas v. Nebraska and Colorado, No. 126 Original. 574 U.S. ___ (2015). Retrieved from: http://www.supremecourt.gov/opinions/14pdf/126orig_olq2.pdf
  33. ^ Kansas v. Nebraska and Colorado, No. 126 Original. 574 U.S. ___ (2015). Retrieved from: http://www.supremecourt.gov/opinions/14pdf/126orig_olq2.pdf
  34. ^ Kansas Department of Agriculture, Division of Water Resources. (17 August 2015). Colorado, Kansas, and Nebraska water agreement further helps water users. Retrieved from: http://agriculture.ks.gov/AllNewsItems/2015/08/27/colorado-kansas-nebraska-water-agreement-further-helps-water-users




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