DWR Currents

October 13, 2010

Arbitrator Decides in Kansas’ Favor on New Republican River Disputes
The Kansas Department of Agriculture issued a news release October 8, 2010, regarding the arbitrator’s October 7 decisions about Nebraska’s crediting issue and Colorado’s compliance pipeline .  DWR Currents readers were among those who received the news release.

These two arbitration proceedings stem from new disputes raised by Nebraska and Colorado regarding administration of the Republican River Compact.  They are distinct from Kansas’ recent filing to the U.S. Supreme Court regarding Nebraska’s 2005-2006 violations of the compact and the final settlement stipulation.

The Division of Water Resources previously covered these arbitrations in the April 6, 2010, Currents and previously covered the recent court filings in the May 10, 2010, Currents and October 6, 2010, Currents.

This article provides additional information on the arbitrator’s decisions.

Nebraska’s Crediting Issue
Arbitrator Martha O. Pagel summarized this arbitration as follows:

“The Nebraska Crediting Proposal seeks an adjustment in the procedures used to determine Compact compliance to reflect payments of monetary damages from one State to another.  Specifically, the proposal is intended to address a problem of “double recovery” that Nebraska asserts will occur unless the requested crediting process is used.  The potential for double recover arises because of the use of running averages and multiple-year compliance periods under FSS accounting procedures.  Nebraska asks the Arbitrator to find that the Crediting Proposal is necessary to address the problem of double recovery.  Kansas opposes the Crediting proposal on the basis of five issues identified during the arbitration process.

“As set forth below, the Arbitrator concludes Nebraska has not demonstrated that the Crediting Plan is necessary to avoid the asserted double recovery of damages, and that Kansas has raised reasonable objections to the Crediting Proposal with respect to three of the five issues presented.

“The decision is in favor of the State of Kansas and against the State of Nebraska with recommendations for further action by the States.” (p. 4)

The arbitrator fully addressed the two most significant issues in dispute:

1. The crediting proposal is unnecessary to avoid double recovery.  “Implementation of the Crediting Proposal is not necessary to avoid a double recovery… It is not necessary or appropriate to provide a “credit” in the FSS accounting procedures for determining compliance in subsequent accounting periods.  To do so would undercut the purposes of the Compact and the complex, but agreed-upon structure of running averages used to determine compliance.” (p. 6)
2. The crediting proposal is contrary to the compact and final settlement stipulation because it attempts to substitute money for water.  “The Crediting Proposal would be contrary to the Compact and FSS by substituting money for water during the years in which a credit would be substituted for actual water use to determine Compact compliance.” (p. 10)

The decision also discusses three other issues of dispute.

In her final conclusions and recommendations, Pagel stated:

“The Crediting Proposal would result in an artificial manipulation of the Tables required for use under the FSS Accounting Procedures.  The result would be to deprive Kansas of the ability to seek and obtain full compensation for any subsequent period of noncompliance relying on the manipulated Tables.  Conversely, Nebraska would receive on-going, multiple year benefits from the one-time payment of damages.” (p. 17)

Colorado’s Compliance Pipeline
Pagel summarized this arbitration as follows:

“Under the FSS, an augmentation plan must be approved by the RRCA [Republican River Compact Administration], which action must occur by unanimous consent.  The Colorado CCP Proposal was submitted to the RRCA for approval and initially rejected by both Kansas and Nebraska.  Nebraska and Colorado later reached an agreement under which Nebraska withdrew its opposition to the proposal.  Kansas continues to withhold its consent on the basis of three major issues that were identified in early stages of the proposal review process, and four additional fact questions articulated during the arbitration process.  Kansas also raises a legal question relating to a confidential stipulation entered into by Colorado and Nebraska.  Colorado asserts that, as a matter of law, one state may not unreasonably withhold its consent under an agreement such as the stipulated settlement, and that Kansas has, in fact, unreasonably withheld its consent in this matter.

“As set forth below, the Arbitrator concludes Kansas did not unreasonably withhold consent to the CCP Proposal with respect to five of the seven fact questions.  However, with certain clarifications and revisions as recommended herein, the CCP Proposal represents an appropriate and necessary augmentation plan that should be approved by the RRCA.

“The Decision is in favor of the state of Kansas and against the state of Colorado, with recommendations for further action by the States.” (p. 4)

Kansas’ three major objections to Colorado’s compliance pipeline proposal and the arbitrator’s conclusions are:

1. The proposal does not meet the requirements of the final settlement stipulation regarding use of the groundwater model.  “The CCP Proposal does not meet the requirements of the FSS because it does not propose use of the Groundwater Model to calculate the amount of augmentation credit.  Therefore, it is not unreasonable for Kansas to withhold its consent to the CCP Proposal on this basis.” (p. 7)
2. The proposal would allow Colorado to replace South Fork overuse with augmentation flow delivered to the North Fork.  “The CCP Proposal would allow for use of the North Fork augmentation in computing Colorado’s statewide compliance; however, Kansas raises a legitimate policy question as to whether an augmentation plan may be used to artificially create a surplus in one sub-basin in order to meet the statewide compliance test.  Therefore, it was not unreasonable for Kansas to withhold its consent to the CCP Proposal on this basis.” (p. 11)
3. Additional operational limits are needed in the proposal.  “Additional operational limits and details are needed in the CCP Proposal to adequately incorporate Colorado’s stated intentions for dealing with minimum and maximum annual deliveries.” (p. 13)

The arbitrator’s report also discusses the remainder of Kansas’ objections.

In her final conclusion, Pagel stated:

“The CCP Proposal, in general, provides a reasonable and necessary approach for meeting Colorado’s Compact obligations.  With changes recommended herein, the revised CCP Proposal should be approved.  However, the facts presented in this Arbitration proceeding do not support a conclusion that Kansas has acted in bad faith or has breached a duty of fair dealing in questioning and challenging key aspects of the proposed augmentation plan.  To be sure there is a risk that, at some point in the future, continuing objections by Kansas may suggest there is nothing that Colorado can do to develop a plan that will meet with approval by Kansas.  At this stage, however, there is no basis for concluding that Kansas has acted unreasonably or that Colorado is entitled to a recommendation from the Arbitrator that the CCP Proposal should be approved.” (pp. 21-22)

Next Steps
The states have until November 1, 2010, to accept or reject the arbitrator’s decisions.  At that point, these arbitrations will be officially concluded.


Barfield Elected President of Western State Engineers
Chief Engineer David Barfield was elected president of the Association of Western State Engineers at the group’s annual meeting last week.  He will serve his term in 2011.

The association’s members are state engineers or other officials charged with administering laws that govern appropriating, distributing or controlling the water resources of each state.  In Kansas, our “state engineer” is the chief engineer of the Kansas Department of Agriculture’s Division of Water Resources.

The Association of Western State Engineers represents Alaska, Arizona, California, Colorado, Hawaii, Idaho, Kansas, Montana, Nebraska, Nevada, New Mexico, North Dakota, Oklahoma, Oregon, South Dakota, Texas, Utah, Washington and Wyoming.

The association is a forum for the chief engineer and his peers from other western states to exchange information about water resources issues, formulate principles regarding water resources management, and help each other solve water resources problems.

As president, Barfield’s chief responsibility will be to conduct the 2011 annual meeting and any special meetings.  Plus, he hopes to raise the profile of the organization.

Barfield is also planning to help the association, founded in 1928, use technology to improve communication and expand participation.  As vice president in 2010, Barfield has been active in developing a website for the association and promoting remote participation by members who are not able to attend meetings in person.

The opportunity for remote participation has been particularly important and welcomed during these lean-budget times.  In fact, Barfield “attended” the 2010 annual meeting in Washington state via webcast and teleconference from his office in Topeka.

The association also holds an annual spring workshop for staff of the state engineers to learn from each other.  Kansas hosted the 2010 spring workshop as noted in the May 18, 2010, DWR Currents.


Hayzlett and Brenn Reappointed to Arkansas River Compact Administration
Last week, Governor Mark Parkinson reappointed Randy Hayzlett and David Brenn to the Arkansas River Compact Administration for four-year terms concluding October 31, 2014.

Hayzlett is a resident and water right owner in Kearny County.  He currently is the longest serving compact administration representative from either state and, as such, he serves as vice chair.  Additionally, Hayzlett is chairman of the Arkansas River Water Conservation Projects Advisory Committee and also serves on the Upper Arkansas Basin Advisory Committee.

Brenn, a resident and water right owner in Finney County, has served several terms as a compact administration representative.  He is manager of Western Kansas Groundwater Management District No. 1, a board member of Southwest Kansas Groundwater Management District No. 3, and president of the Kansas Water Congress.

Kansas and Colorado are each represented by three representatives.  The other Kansas representative is Chief Engineer David Barfield.

Former Kansas House Speaker Robin Jennison is the federally-appointed chairman of ARCA.

The Arkansas River Compact was negotiated in 1948 between Kansas and Colorado with participation by the federal government.  Its stated purposes are:

• To settle existing disputes and remove causes of future controversy between Colorado and Kansas
• To equitably divide and apportion between Colorado and Kansas the waters of the Arkansas River as well as the benefits arising from John Martin Reservoir

The compact also established the Arkansas River Compact Administration to administer its provisions.


Western Kansas Gets Drier
Beginning September 28, 2010, the U.S. Drought Monitor reported a significant increase in the “abnormally dry” area in western Kansas.  Previously, portions of nine western Kansas counties (3 percent of the state) were affected; now portions of 29 western Kansas counties (17 percent of the state) are deemed abnormally dry.

Right: Kansas detail map of October 5, courtesy of the U.S. Drought Monitor.  Click to enlarge image.

The last time the Drought Monitor showed this extent of Kansas affected by dry conditions was spring 2009.

The October 5 Drought Monitor included a forecast for continued below-average precipitation across most of the central states, including Kansas.

Below: Maps by the National Weather Service show that portions of western Kansas have received as little as half the normal precipitation so far this year (left map).  Precipitation totals in some areas are as much as 8 inches below normal at this point in the year (middle map).  Observed precipitation totals range from as little as5 inches in parts of western Kansas up to 60 inches in parts of the east (right map).  Click to enlarge images. (Images updated 10/14/2010 to include county boundaries.)

   


Web Update: Certified Meters Added to List
The Division of Water Resources added several meters to the Certified Water Flowmeters list and changed requirements related to the recently added AccuMag meter.

Newly certified meters include:

• Elster\AMCO\ABB\Kent Water Metering Systems Watermaster FEV111, FEV121, FEV181, and FEV191 full-bore electromagnetic 1½-inch to 12-inch
• Elster\AMCO\ABB\Kent Water Metering Systems Watermaster FEF121 and FEF181 full-bore electromagnetic 10-inch to 84-inch
• SeaMetrics WMP104 full-bore electromagnetic 1-inch and 2-inch

Special requirements are listed for these meters.

Revised requirements for the Sensus Metering\Invensys\Precision\Rockwell AccuMag are:
register capabilities locked and wire seal to prevent register from being opened without evidence.

Equipment listed on the Certified Water Flowmeters list has been certified by their manufacturers to be in compliance with Kansas specifications for water flowmeters as detailed in Kansas Administrative Regulation (K.A.R.) 5-1-4.  These flowmeters are acceptable for use where the chief engineer has required a water flowmeter.  Separate regulations govern flowmeter installation and maintenance requirements.


Upcoming Events

• October 13: GMD 3 Board Meeting (Garden City)
• October 19: GMD 1 Board Meeting (Scott City)
• October 25: Public Hearing on Proposed Regulations for AWEP and well equipment in GMD 5 (Topeka)
• October 26: Water and the Future of Kansas Conference (Topeka)

For more information about these and other upcoming events, please check our online events listings.