Kansas Beats Nebraska Again, This Time In Water Court.

The states of Colorado, Kansas and Nebraska executed a "water compact" in the 1930s concerning the apportionment of water in the Republican River between the states.  Under the compact, Colorado is to get 11 percent of the water, Nebraska 49 percent, and Kansas 40 percent for "beneficial consumptive use."  In the late 1990s, Kansas filed a complaint that groundwater wells in NE had pumped excess water from the Republican River which depleted stream flow as the river water flowed into Kansas.  The U.S. Supreme Court agreed with a  special master report upholding KS' claim.  The parties settled, with the settlement resulting in usage to be computed on a five-year running average (reduced to two years during drought).  Under the settlement agreement, groundwater pumping counted toward a state's water consumption.  KS later claimed that NE violated the first five-year review and a special water master agreed, determining that NE had "knowingly failed" to comply with the compact.  NE was found to have exceeded its allotment by 70,829 acre-feet (note - a four person family uses approximately one acre-foot of water annually).  The special master suggested an award of $5.5 million to KS ($3.7 million for loss and $1.8 million for disgorgement of gain), but did not issue an injunction.  Both NE and KS appealed.  The Court affirmed the special master's report, noting that NE had acted too slowly to come into compliance with the compact and had adopted a water management plan in 2005 that only required a 5 percent reduction in groundwater pumping without evidence that such reduction would bring the state into compliance with the compact.  In addition, the Court noted that NE had no way to enforce the 5 percent reduction other than to trust the irrigators.  The Court also agreed with the special master in that the settlement agreement should be reformed so that a state was not charged for using imported water.  The dissent disagreed on this latter point.  NE has 60 days from the date of judgment to pay.  In addition, the Court ordered each of KS and NE to pay 40 percent of the special master's fee, and assessed the remaining 20 percent to CO.  Kansas v. Nebraska, et al., No. 126, 2015 U.S. LEXIS 1835 (U.S. Sup. Ct. Mar. 9, 2015).