Republican River Compact and Enforcement Update
Republican River Compact Enforcement Fact Sheet, May 3, 2010.
NEWS
Republican River Compact Administration Annual Meeting, August 31, 2011:
On August 31, 2011, the Republican River Compact Administration held its 51st annual meeting in Burlington, Colorado. The administration and its engineering committee met the previous day to work on reports and prepare for the annual meeting. The agendas for the annual meeting and the work session are available for download or viewing.
Kansas brings Nebraska's Compact Violations to the U.S. Supreme Court:
On April 4, 2011, the U.S. Supreme Court issued an order accepting Kansas’ May 3, 2010 request to file suit seeking enforcement of the Republican River Compact and the Court’s decree approving the final settlement stipulation of 2003. The Court also issued an order appointing William J. Kayatta, Jr., of Portland, Maine as Special Master in the case. The Special Master will direct the proceedings and make recommendations and reports to the Supreme Court. These orders and the entire timeline of the Republican River litigation that began in 1998 can be found on the Court’s website here 
. The Kansas Attorney General has issued a press release on this news .
On May 3, 2010, Kansas filed suit in the U.S. Supreme Court to enforce the final settlement stipulation. Nebraska has violated the compact and has failed to take actions necessary to avoid future violations, especially in the inevitable dry periods to come. Kansas' suit argues that Nebraska should be held in contempt of court for not obeying the court's 2003 order adopting the final settlement stipulation, the court should take action against Nebraska to ensure that Nebraska will not violate the compact again, and that Nebraska should pay damages to Kansas for violations of the decree.
Links:
- Special Master Kayatta's docket sheet for Kansas v. Nebraska and Colorado No. 126, Original
- U.S. Supreme Court online docket for Kansas v. Nebraska and Colorado; No 126 Original
- Kansas Attorney General's press release on the U.S. Supreme Court accepting Kansas' May 3, 2010 suit
- The U.S. Solicitor General's brief is filed in the U.S. Supreme Court, February 28, 2011
- Full Text of Kansas' Pleading to U.S. Supreme Court, May 3, 2010
Contents
Overview | Nebraska's Noncompliance | Colorado's Noncompliance
Links | 2010 Arbitration | 2008-2009 Arbitration | Final Settlement Stipulation
After years of dispute regarding Republican River use, in 1998 Kansas filed suit against Nebraska 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 Nebraska's contention that groundwater use was not governed by the compact.
2002 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 RRCA groundwater model. Since 2003, the model has been 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, accepted the settlement, which brought an end to litigation between the states. See these links for more information and documents related to the Final Settlement Stipulation.
Nebraska Violation of Water-Short Year 2006
During much of this initial period of Settlement implementation, water supplies in the basin were 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 did not have 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 Kansas RRCA Commissioner David Barfield sent a letter to his Nebraska counterpart. The letter called for Nebraska to make significant reductions to groundwater pumping in order to get into compliance in a timely manner.
After a number of meetings and discussions in the spring, the compact administration met May 16, 2008, and determined that it could not resolve Kansas' concerns, nor concerns raised by Colorado and Nebraska. The states submitted their disputes to nonbinding arbitration on October 21, 2008, and a decision was issued June 30, 2009. Both Kansas and Nebraska accepted some parts of the arbitrator’s decision but rejected others. Kansas is now free to seek relief from the U.S. Supreme Court.
The settlement also specified 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 was to 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 to constrain its use of the South Fork tributary as required by the compact. Colorado provided information at the March 2008 meeting on its proposed compliance pipeline to offset excessive groundwater pumping and discussions between the states ensued. Under the settlement terms, all three states must approve the proposal.
On April 28, 2009, a special meeting of the Republican River Compact Administration was convened at Colorado’s request to formally consider their plans to build a pipeline to the North Fork Republican River from a well field several miles to the north of the river. Citing several deficiencies with the plan, including that it did not address Colorado’s shortfall on their South Fork obligation and unresolved accounting issues, both Kansas and Nebraska voted to reject the plan.
In June 2009, Colorado’s Republican River Water Conservation District purchased 14,798 acre-feet of water rights — at an estimated cost of more than $40 million — to supply to the pipeline.
At the August 12, 2009, annual meeting of the Republican River Compact Administration, Colorado resubmitted its compliance pipeline plan to the administration for a vote. Kansas and Nebraska again rejected the plan. Exercising their rights under the settlement, Colorado has invoked nonbinding arbitration to have the merits of their issue considered by an impartial party. Discussions continued after the annual meeting, and in a November 30, 2009 Letter to Colorado, David Barfield detailed Kansas’ concerns with the pipeline proposal and offered suggestions for resolving the issue. Colorado has not pursued further discussions. Arbitration began on March 29, 2010, and is scheduled to end with a decision from the arbitrator.
On October 7, 2010, Arbitrator Martha O. Pagel issued decisions in the nonbinding arbitrations over Nebraska's Crediting Issue and Colorado's Compliance Pipeline. Both decisions are in favor of Kansas. On November 1, Kansas, Colorado, and Nebraska responded to the arbitrator's decisions by accepting or rejecting all or parts of the decisions. The decisions and responses are available below under 2010 Arbitration.
Further readings and informational links:
General
- Republican River Compact Enforcement Fact Sheet, May 3, 2010
- Republican River Compact background and litigation history
- Republican River Data and Links
2010 Arbitration Over Colorado’s North Fork Pipeline Proposal and Nebraska’s “Crediting Issue”
- Arbitrator's decision on Colorado's Compliance Pipeline
- Responses to the decision by: Kansas, Colorado, Nebraska joint response on the Pipeline and Crediting Issue
- Arbitrator's decision on Nebraska's Crediting Issue
- Responses to the decision by: Kansas, Colorado, Nebraska joint response on the Pipeline and Crediting Issue
- Colorado's Pipeline Proposal and Issue, as submitted for arbitration by Colorado, March 29, 2010
- Nebraska's Concerns with Colorado's pipeline proposal, as submitted for arbitration by Nebraska, March 29, 2010
- Nebraska's Crediting Issue, as submitted for arbitration by Nebraska, March 29, 2010
2008-2009 Arbitration Over Nebraska's Noncompliance in 2005-2006
- Kansas chief engineer's February 8 letter submitting dispute with Nebraska as a fast-track issue for Republican River Compact Administration.
- Kansas chief engineer's April 22, 2008 letter to Nebraska clarifying economic remedy for Nebraska's 2005-2006 violations.
- The Republican River Compact joint notice of arbitration, October 21, 2008.
- Arbitrator's final decision on legal issues regarding Nebraska's 2005-2006 violations, January 22, 2009.
- Arbitrator's final decision on Nebraska's 2005-2006 violations, June 30, 2009.
- Kansas chief engineer responds to arbitrator’s decision on Republican River dispute, July 1, 2009
- Kansas’ official response to the arbitrator’s final decision, July 30, 2009
- Press release by the Kansas Attorney General’s Office, July 30, 2009
2002 Final Settlement Stipulation
- Republican River Compact Settlement Summary
- RRC Final Settlement Stipulation
- RRC Settlement Appendix B Implementation Schedule
- RRC Settlement Appendix C RRCA Accounting Procedures
- RRC Settlement Appendix L Additional Water Administration
- RRC Basin Map
- Chronology of Republican River Compact litigation
Page last updated April 4, 2011
