Republican River Compact Background and Litigation History


Background

The Republican River basin begins in the plains of Eastern Colorado.  It flows through Northwest Kansas and Southwest Nebraska, and, after traversing a good part of Southern Nebraska, ultimately returns to Kansas.  In Kansas it empties into Milford Reservoir.  Releases from Milford join the Smoky Hill River to form the Kansas River at Junction City.  Map of Kansas Compacts

Federal Projects in the Basin

In May 1943, the Bureau of Reclamation and Corps of Engineers began planning and developing their projects in the basin.  This occurred after congressional consent and presidential approval of the Republican River Compact   The federal projects in place today include a system of seven Bureau of Reclamation reservoirs, two Corps of Engineers' reservoirs and six irrigation districts.

In addition to the federal projects, significant groundwater development has occurred in the basin.  This groundwater development was at the heart of the controversy between the states of Kansas and Nebraska.  Kansas alleged that Nebraska's significant groundwater use, combined with its surface water use, placed it over its Compact allocation in many years.

Significance to Kansas

In the Republican River and its tributaries are important resources to the state of Kansas.  Kansas interests in the basin include:

  • Groundwater and surface water rights in the upper Republican River tributaries of Northwest Kansas, including the South Fork Republican River, Sappa Creek, Beaver Creek, Prairie Dog Creek and the Almena Irrigation District.
  • The Kansas Bostwick Irrigation District.
  • Both surface water and groundwater rights to use the main stem Republican River in Kansas.
  • Use of Milford Reservoir, including downstream users on the Kansas River.

The Republican River Compact (Republican River Compact statute)

The Republican River Compact was negotiated during the early 1940s with participation by the states of Colorado, Kansas and Nebraska and a representative of the president of the United States.  The compact was formally signed on December 31, 1942.

Its purposes are to: (1) provide for equitable division of such waters; (2) remove all causes of controversy; (3) promote interstate comity; (4) promote joint action by the states and the United States in the efficient use of water and the control of destructive floods; and (5) provide for the most efficient use of waters in the Republican River basin.

The negotiators of the compact determined the virgin water supply within the basin.  Virgin water supply is defined as the water supply within the basin undepleted by the activities of man.  Based on that, the compact makes specific allocations to each of the three states in 14 different subbasins.  The compact includes provisions for adjustments to the virgin water supply and allocations based on future records and/or changing conditions.

The compact includes provisions related to the federal government's ability to develop projects within the basin.  Major federal developments anticipated by the compact were flood control projects (clearly shown as being needed following the 1935 flood) and irrigation development.

The state official in each of the three states who is charged with administering water law also administers the compact.  The compact commissioners have the power to adopt rules and regulations consistent with the provisions of the compact.  Rules and regulations for administration of the compact are adopted only by unanimous vote.  The Republican River Compact Administration was created in 1959.  Over the years, the compact administration developed and refined methods to annually estimate the virgin water supply and consumptive uses within the basin.  The compact administration meets annually to report on events pertaining to the compact and to take any necessary action regarding the administration of the compact.

Litigation

In May 1998, Kansas filed a motion for leave to file a bill of complaint before the U.S. Supreme Court.  It stated that Nebraska had breached the terms of the Republican River Compact by allowing the proliferation and use of groundwater wells hydraulically connected to the Republican River and its tributaries and by failing to protect the surface flows from other unauthorized appropriations.

On January 19, 1999, the U.S. Supreme Court granted Kansas' motion for leave to file.

On June 21, 1999, the U.S. Supreme Court granted Nebraska leave to file a motion to dismiss the action, limited to the question of whether the compact restricts a state's consumption of groundwater.

On November 15, 1999, the United States Supreme Court appointed Vincent L. McKusick, Portland, Maine, special master and referred Nebraska's motion to dismiss to him.

On January 28, 2000, Special Master McKusick filed his first report on Nebraska's motion to dismiss with the Supreme Court.  In his report he recommended the court deny Nebraska's motion to dismiss.  On June 29, 2000, without oral argument, the court denied Nebraska's motion to dismiss and recommitted the matter to the special master for further proceedings.

On October 19, 2000, the special master issued a case management order identifying a number of legal issues for resolution and setting forth an aggressive, detailed trial preparation schedule that had trial commencing March 1, 2003.

On February 12, 2001, after briefing by all the parties and the United States, the special master ruled on three of the issues identified at the case status conference of October 16, 2000.  The special master's rulings supported Kansas' positions that a state is not entitled to consume any water allocated to another state if not put to beneficial use and that a state need not show injury to obtain prospective relief.  However, on the third issue the special master ruled against Kansas' position that the numbers published by the Republican River Compact Administration for 1959-1994 of the virgin water supply, allocations and consumptive use were not conclusive.  Thus, he will not allow these figures to be recomputed to include the impact of Ogallala pumping.

On October 26, 2001, after briefing by all the parties, the special master ruled on additional issues, denying Nebraska the ability to use eight defenses in determining whether Nebraska has violated the Republican River Compact.

During October 2001, the parties initiated settlement talks.