Republican River Compact and Settlement

Kansas chief engineer responds to arbitrator’s decision on Republican River dispute.

Arbitrator's final decision on Nebraska's 2005-2006 violations, June 30, 2009

The Republican River Compact joint notice of arbitration, October 21, 2008.

Republican River Compact Enforcement Fact Sheet, November 15, 2008.

David Barfield's April 22, 2008 letter to Nebraska clarifying economic remedy for Nebraska's 2005-2006 violations.

David Barfield's February 8 letter submitting dispute with Nebraska as a fast-track issue for Republican River Compact Administration.

Introduction

After years of dispute regarding the use of the Republican River, Kansas filed suit against Nebraska in 1998 in the U.S. Supreme Court alleging that Nebraska had violated the Republican River Compact.  During 1999, the court agreed to hear the case and appointed a special master.  In 2000, the Court denied Nebraska's motion to dismiss the case based on its theory that groundwater use was not governed by the compact.  Additional information:

Settlement

During October 2001, concurrent with discovery and other pretrial activities, the parties began settlement negotiations.  On December 16, 2002, the States announced that a settlement had been reached.  On May 19, 2003, the U.S. Supreme Court approved the settlement and dismissed the case with prejudice effective upon the filing by the special master of a final report certifying adoption of the Republican River Compact Administration RRCA Groundwater Model by the state parties.  On June 30, 2003, Kansas, Colorado and Nebraska reached agreement on the Republican River Compact Administration (RRCA) groundwater model.  The model will be used to quantify groundwater consumptive use by each state as part of the compact's accounting procedures.  On August 22, 2003, the RRCA formally adopted the settlement's accounting procedures, including the groundwater model.  On October 20, 2003, the court, based on the final report of the special master, took notice of this action, bringing an end to litigation between the states.

Below are links to the Final Settlement Stipulation, key appendices and a summary of the settlement.  Other documents include a chronology of the dispute, litigation and settlement, as well as a before-and-after settlement comparison.  To obtain more information regarding the settlement, or a full set of the settlement documents, contact Interstate Water Issues at (785) 296-3710.

Update

Since the settlement was reached, the states have worked to implement its provisions.  The states annually exchange an extensive array of water use and other data and run a joint groundwater model.  See www.republicanrivercompact.org for compact accountings, model data sets and supporting data.

Two special studies agreed to in the settlement are under way.  First, the states and the federal government developed, and the RRCA approved, a plan for a five-year study of the impact of conservation practices on the basin's water supply.  That study is to be completed in 2009.  Second, the Bureau of Reclamation, Kansas and Nebraska completed an appraisal level study of potential system improvements in the lower Republican basin to improve use of the water.  The appraisal study found alternatives worthy of additional scrutiny, and the bureau and the states developed a plan for a more detailed feasibility study.  It is expected to cost about $1.25 million and take roughly three years to complete, and efforts are under way to obtain the required congressional authorization and funding.

During much of this initial period of Settlement implementation, water supplies in the basin are low.  No water was supplied from a number of the federal reservoirs during this period.  2004 was the first year no water was delivered from Harlan County Reservoir since it was built in the 1950s.

Under the final settlement stipulation, 2006 was the first year to measure whether Nebraska complied with settlement terms for water-short years for the two-year period from 2005 to 2006.  According to Kansas' calculations, Nebraska used 79,140 acre-feet more water than it was entitled to in 2005 and 2006.  A city with 100,000 residents will take about 10 years to use 80,000 acre-feet of water.  One acre-foot is equal to 325,851 gallons.

During the years Nebraska overused its share of water in violation of the settlement terms, Kansas has not had adequate water for its Kansas Bostwick Irrigation District and mainstem Republican River users.

Because Nebraska failed to comply with settlement terms, on December 19, 2007, Chief Engineer and Compact Administrator David Barfield sent a letter to his Nebraska counterpart with Kansas' proposed remedy, which included an immediate shutdown of wells within 2.5 miles of the Republican River and its tributaries, and on lands added after the year 2000, or their hydrologic equivalent.  Additional actions may be needed in the next several years for Nebraska to meet water-short year obligations until stream depletion caused by groundwater pumping decreases.

Since it appears impractical for Nebraska to repay Kansas with water, Kansas has asked for monetary compensation for past shortages in an amount equal to Nebraska's gains or Kansas' losses, whichever is greater, as well as for interest, attorney fees, etc.  Barfield's April 22 letter provided Kansas' quantification of this amount at $72,365,133.

Nebraska's February 4, 2008, response was that they did not agree with Kansas' analysis and demands.  As a result, on February 8, 2008, Barfield requested the dispute be considered by the compact administration, the first step in a dispute resolution process prescribed by the settlement.

The compact administration met March 11 and 12 to consider Kansas and Nebraska's dispute over Kansas' proposed remedy for Nebraska's overuse of Republican River basin water in 2005 and 2006 in violation of the compact and final settlement.  This led to a series of additional meetings, data exchanges and committee work over two months to consider the dispute.

The compact administration met May 16, 2008, and determined that that it could not resolve Kansas' concerns, nor concerns raised by Colorado and Nebraska.  The states are now beginning nonbinding arbitration, the next step prescribed in the settlement, which will likely continue through May 2009.

The settlement also specifies 2007 as the first year to measure normal-year compliance for the five-year period from 2003 through 2007. While the final accounting for 2007 has not been agreed to by the compact administration, based on Kansas' calculations, Nebraska overused its share of water for 2003 to 2007 by approximately 118,000 acre-feet.

Colorado also must meet its first five-year test of normal-year compliance ending with 2007.  Kansas' calculations indicate Colorado has exceeded its allocations for 2003 through 2007 by approximately 52,600 acre-feet.  In addition, Colorado failed its south fork tributary test of compliance.

Colorado provided information at the March meeting on its proposed compliance pipeline to offset depletions.  Colorado plans to purchase roughly 15,000 acre-feet of existing consumptive-use water currently used for irrigation in the North Fork Republican River basin.  The water is to be pumped into a 12-mile pipeline and delivered to the North Fork Republican River at the Colorado-Nebraska state line.  Kansas' stance is that Colorado is also overusing its South Fork Republican River allocation and must take action to get into compliance on the south fork.  The compliance pipeline proposal has been referred to the compact administration's engineering committee for review.  Under the settlement terms, all three states must approve the proposal.

Page last updated July 1, 2009