Two states claim river victory

The latest decision in a long-running water dispute between Nebraska and Kansas was good for Nebraska's taxpayers — at least for now.

Nebraska owes Kansas only a token $10,000 for farmers' overuse of Republican River water, an arbitrator ruled Wednesday. That's well below the $72 million Kansas once claimed.

But the decision's long-term impact was far less clear, particularly for the southwest Nebraska farmers who depend on Republican flows for their livelihoods.

Nebraska's current plans for preventing overuse of Republican River flows during drought years are inadequate, arbitrator Karl Dreher said. The state needs to take further steps to reduce water consumption, and could face other “significant'' sanctions in addition to Kansas' actual damages if it again overuses in the future.

When the ruling became public Wednesday morning, legal officials in both states claimed victory, and the dispute figured to go on. The arbitration ruling is not binding on either state, and the issues still could end up before the U.S. Supreme Court.

Kansas officials on Wednesday weren't ruling out going to court.

David Barfield, Kansas' water czar, said Kansas could still go to court for the full $72 million — the amount of financial gain Nebraska attained from using Kansas' water. The prospect of such big-dollar losses may be the only way to get Nebraska to cut its excessive water use in the future, he said.

“We think Nebraska needs a pretty powerful incentive to take the actions necessary,'' he said. “We disagree with the arbiter that we have to wait until Nebraska violates again to get relief.''

But Nebraska Attorney General Jon Bruning said it's now clear Kansas won't be able to prove it was damaged by Nebraska's overuse. During the two years in question, he said, Kansas farmers actually produced record crops.

Bruning said he recognizes Nebraska does need to do more to cut back during drought years. The state and irrigators are working on it, he said, and progress is being made.

“I'm hopeful we can continue to talk about resolving this out of court,'' Bruning said. “But if Kansas wants to continue to spend millions and millions to recover $10,000, that's their prerogative.''

Nebraska and Kansas have battled for well more than a decade over whether Nebraska irrigators have been taking more water from the Republican River than is allowed under a World War II-era agreement that divides river flows among Nebraska, Kansas and Colorado.

The natural resources districts that Nebraska law charges with regulating groundwater pumping had for decades allowed largely unrestricted development of irrigation wells in the Republican valley.

Irrigators have argued major pumping restrictions on the Republican would be devastating to the region's economy.

Kansas and Nebraska recently have fought over excessive use that occurred during 2005 and 2006 and how much Nebraska should compensate Kansas for it.

Kansas originally sought the $72 million, the amount that Nebraska benefited, and estimated its own losses from the overuse at about $9 million. Nebraska put Kansas' loss at no more than $1.2 million.

Dreher earlier rejected the $72 million. In his latest decision, Dreher said Kansas no doubt suffered damages from Nebraska's overuse, “and those damages could well be in the range of one to several million dollars.”

But he rejected as excessive Kansas' formula for calculating those damages. He decided to offer Kansas only the nominal damages of $10,000 until Kansas can correct its methodology. He left open the possibility for a bigger award through subsequent arbitration or in court.

Looking at future compliance, the arbitrator said the three local natural resources that control pumping in the Republican valley need to further reduce consumption during dry years. He did not specify how, but did reject a proposal from Kansas that would have shut down half the irrigation in the basin during drought years.

David Aiken, a University of Nebraska-Lincoln water law specialist, said it appears Nebraska has prevailed in the latest round of the water fight. But he said it was significant that the arbitrator warned of possible future sanctions for Nebraska. That should temper Nebraska's reaction, he said.

“(The abitrator) is saying, ‘This time, we're letting you off easy,' '' Aiken said, “ ‘but next time you're subject to financial penalties, beyond any losses Kansas can show.' ''

Contact the writer:

444-1130, henry.cordes@owh.com