By Russ Pankonin
The Imperial Republican
On Monday, the U.S. Supreme Court appointed a special water master to address ongoing differences between Nebraska and Kansas on Republican River Basin water use.
The two states entered into non-binding arbitration but Kansas remained unsatisfied with the arbitrator’s rulings in June, 2009.
Following a second arbitration ruling in later 2010, Kansas still did not feel they got what they wanted and took the issue to the U.S. Supreme Court.
Only the Supreme Court hears cases between states.
The appointment of a special water master by the Supreme Court came as no surprise with those close to the situation.
Upper Republican Natural Resources District manager Jasper Fanning said this was the action expected.
He said it also gives Nebraska the opportunity to address issues raised in previous arbitration dealing with accounting irregularities in the compact groundwater model.
This model is used to determine the amount of virgin water supply available each year in the Republican Basin.
Fanning said Nebraska filed briefs urging the high court to take the case, only if they agreed to look at Nebraska’s claim about the accounting as well.
Fanning said it appears the issue will be addressed at some point.
Kansas is looking to the high court and it’s special master for several things—an order prohibiting Nebraska from getting out of compliance with the settlement and setting up present sanctions if it does;
An order to force Nebraska to reduce its groundwater pumping to a degree to insure compliance; and the appointment of a river master to monitor Nebraska’s use of Republican water to insure its compliance.
They are also amassing evidence to substantiate their claim of more than
$70 million in damages for Nebraska’s alleged non-compliance in 2005 and 2006.
Second Time Master
This marks the second time that a special water master has been appointed by the high court in an effort to resolve the differences.
A special master was first appointed to resolve issues between the states in a case filed by Kansas in 1998. That resulted in the final compact settlement agreement approved by the Supreme Court in 2003.
The special master for this go-round will be William J. Kayatta, Jr., of Portland, Maine. He comes from the same law firm as the special master involved in the 2003 settlement, Vincent L. McKusick.
Kayatta will have a wide range of authority on behalf of the high court. He will fix the time and conditions for additional pleadings and direct subsequent proceedings. He can also summon witnesses, issue subpoenas, take evidence and whatever else he may deem necessary to call for.
The Next Step in
Since Kansas did not feel they came through the non-binding arbitration with what they wanted, the only remaining remedy was for Kansas to ask the Supreme Court to step in.
Kansas alleges Nebraska overused its allocation in 2005 and 2006 by more than 70,000 acre feet.
In arbitration, Kansas was seeking more than $70 million for damages suffered. However, arbitrator Karl Dreher said Kansas didn’t make a sufficient case for damages, adding the damages may be closer to several million and then only awarded them $10,000 in his ruling.
To insure compliance, Kansas also wants wells within 2.5 miles of any stream or tributary to be shut down, equating to about 500,000 acres in the basin.
Dreher sided with Nebraska on this issue, saying Kansas couldn’t dictate land use in Nebraska when it comes to compliance.
Dreher acknowledged some inaccuracies in the accounting for the water model and urged the three-state compact association to revisit the procedures.
He also told Nebraska that it’s efforts to stay in compliance with the compact in dry years appeared to be inadequate.
That prompted the Department of Natural Resources to request new integrated management plans (IMP) from the basin’s natural resources districts (NRD) to insure compliance in dry years.
The Upper Republican and Middle Republican NRDs have adopted such IMPs but the Lower Republican NRD has yet to take action.
Nebraska Attorney General Jon Bruning responded to Kansas’ action Monday.
“Thanks to the cooperation of our farmers in the Republican River Basin, we have the management tools in place to continue to be in compliance with the compact,” he said. “Our farmers have done what is necessary for the last several years to ensure we are doing our part.”