Kansas Water Dispute

For many years there has been a controversy between two states, Kansas and Nebraska. It initially started in 1999 and is continuing to this day. The water issue between the two states is a dispute concerning the water rights agreement that was signed back in 1943. This agreement was the Republican River compact agreement. Each state was agreed to receive a certain amount of the river water, 49 percent of the river’s water to Nebraska, 40 percent to Kansas, and 11 percent to Colorado (Rosales). The purpose of this compact is to 1). Provide for equitable division of such waters; 2). Remove all causes of controversy; 3). Promote interstate comity; 4). Promote joint action by the states and the United State in the efficient use of water and

the control of destructive floods; and 5). Provide for the most efficient use of water in the Republican River basin (Kansas Department of Agriculture). The water in supply for these three states, are “virgin” waters. This means the supply of water is depleted by the activities of man. Once the supply is determined the compact makes allocations specific to each of the states.
This case all started in May of 1998 when Kansas decided to file a notion of leave to file the bill of complaint to the U.S. Supreme Court. This stated that Nebraska had breached the terms of the Republican River Compact by allowing the unimpeded development of thousands of well in hydraulic connection with the Republican River and its tributaries (Kansas Department of Agriculture). From there it’s a continuing a battle between Nebraska and Kansas. Then in 2010 Kansas had a claim that Nebraska was over-consuming water from the Republican River and that Nebraska’s violation harmed Kansas (Rosales). Kansas demanded Nebraska to pay damages for the amount of water Nebraska had gained over the years and how much Kansas has lost. Colorado was then pulled into this dispute because the Republican River headwaters rise within in the state of Colorado.
Initially a judge decided that Nebraska pays $5.5 million for overusing the water during the drought in 2006 that was historic, but Kansas wanted more, $80 million, and wanted Nebraska to shut down many irrigations on thousands of acres, 302,000. By shutting down many irrigations, which would impact the farming in that area which would also affect the water rights for those farmers that are along the stream or that get the water supply from the river for their crops. In the year of 2013, the Master issued a 188-page report. It recommended that Nebraska pays $3.7 million to compensate for its loss of water and $1.8 million to accounts for Nebraska’s wrongdoing. Nebraska will argue that the state never knowingly violated the compact hurting Kansas, his state stated by Chief Deputy Attorney General David Cookson. He said that strict pumping limits, imposed on the state’s irrigators in the basin in recent years (Hendee). New pipelines were added to help protect the flow of the river to Kansas. The Master recommended denying all other requested relief including Kansas’ requests for injunctive relief, sanctions, and an appointment for a river master.
The Republican River basin water right between Nebraska and Kansas should be more of a concern for people in agriculture and outside of agriculture. By battling the water rights it is causing farmers to either shut down their irrigations acres, lose out making profit and even by not growing enough crop to be put into our world feed for consumption. In an article “Farmers feeling head in Republican River dispute”, a farmer from Bartley, Nebraska, Scott Moore, could lose all his right to irrigate on his land if Kansas prevails in the next legal battle. He states “It’s tough when you’ve made an investment, when the water is there and you just say you can’t use it” (Gerlock). Kansas could possibly shut down almost 300,000 acres in the basin, which is about 30 percent of the irrigation in the basin. This could cost the farmer because without using irrigation, they would have to start using a pivot sprinkler. By adding a pivot sprinkler, the farmer would have to tap into the aquifer, due to not being allowed to use the water from rivers, and use the aquifer groundwater causing another issue. The issue already being in affect that there is a fast depletion of the Ogallala Aquifer that these states are already are on top of. Denying access to the water for the other states like Oklahoma, Texas, and New Mexico.
Nebraska is trying to hold up their end of the battle for water right by buying out water rights within two miles of the river. The middle Republican District is paying farmers to stop irrigating and replacing crops with grass. A problem for farmers because some years might not have enough rain for the crops to grow which would then reduce the amount of crops that can be harvested for consumers. Why would a farmer invest in all dry land farming for hundreds of acres when each year they do so could have a different moisture pattern? Dry years reminds Nebraska farmers why they don’t have to depend on the rain when they know that there is ground water that could be used. Not every farmer wants to give that up just so they neighboring states farmers could have a better crop. Many farmers also make a living off of their land, could anyone image what it would be like to put a farmer out of business? The state wouldn’t have enough money to pay each farmer the amount of money they would get for crop if they had to shut down each of their irrigated fields, and therefore all of us would be out of food.
There are many different institutions throughout this controversy.

Kansas Department of Agriculture, Colorado Division of Water Resources, Nebraska Association of Resources Districts, and University of Nebraska College of Law are some of the main institutions. Kansas Department of Agriculture has the Division of Water Resources within the department and it governs the use of the state’s water, regulates the construction of dams, levees and other changes being made to the streams. Since the dispute has to deal with the stream that runs through Nebraska and Kansas they have to be involved. The Division of Water Resources is one of many different agencies managing the Kansas’ water resources. Colorado Division of Water Resources is within the Colorado Department of Natural Resources and it has the same involvement as the Kansas Department of Agriculture. It is responsible for the development, protection, and enhancement of the natural resources that are in the state of Colorado. The Colorado Division of Water Resources administer water rights, issue well water permits, and also represents the state in the interstate compact water. Nebraska Association of Resources helps the state’s natural resources districts approach these issues in a coordinated effort…works hand-in-hand with districts on basin-wide issues… the Republican River lawsuit with Kansas (Nebraska Natural Resources

Districts).
Besides the fact that each of these institutions being involved with the Kansas-Nebraska conflict, the court also had to come up with a “middle man” for both of the states. This person was called the master. Special Masters are a unique brand of dispute-resolver relatively unknown to many mediators, facilitators or public officials (Keller). The master is appointed by the Supreme Court who sits as a judge to review all of the evidence of the water rights involving an interstate compact between Nebraska and Kansas. He then makes the recommendations to the justice. A Special Master may also be appointed pre-trail to manage part of a particular complex case. It is usually a case that involves many parties and a large issue that takes years to litigate. Vincent L. McKusick was to be the Special Master in the lawsuit of November 15, 1999. In August of 2012, the trial was held in Portland, Maine before the special master, William Kayatta. The Special Master is very important to this water issue because they bring up to the penalties to the court.
Having a Special Master is important because without them there could be an even bigger dispute because one state obviously wants more from the other state then what is to be appropriate. They don’t promote or inhibit the issue. The Special Master just makes reasonable justifications. Seeing both sides of what would be right for each state in the water rights. Noticing that Nebraska is working on the issue of taking more water than what is needed and then seeing the impact of not having enough water on the Kansas side of the issue. Being the Special Master makes everyone in the situation somewhat happy because each state is getting what they want. The institutions and administrators are very affective with the issue because they see what is happening on each end of the spectrum, giving a little inside to one another and there can be an agreement amongst everyone. Not only is there a Special Master involved, but there are also attorneys for each state and other board members that are on each council for the state’s water rights.
A solution for this issue would just have a little more control of the water that is being used for each of the states. The compact could possibly be altered because of raining/drought seasons. Each farmer should keep a tab on their water use anyway and they could turn it into the court after each crop season. Another solution to this issue would be that farmers could only have a certain amount of irrigations lands and then a certain amount for dry land. Then each farmer could plan their crop seasons around which field would be dry land and which one could use irrigation for it. This solution would be the best because then the state isn’t taking away a lot of the farmer’s profit and it would still be beneficial for consumers and other industries. By monitoring the control of the water a little better besides what the states are doing now, there wouldn’t be this big of a dispute. Possibly having a person that checks each of the wells, dams, or other river restrains that would be the only one to go to each area and help control the water. Farmers can’t help it if they take more water than needed if they want to make a living and have enough food to save the world.
In conclusion, the dispute is still going on to this day between the two states. Colorado has tried to stay out of the compact and just keep letting water flow down into the Centennial State. Colorado stayed out of courts and also reduced its attorneys’ fees. According to Kansas, Colorado has “made a deal with Nebraska to the 5-run” (Tart). This issue will continue to stay around until the administrators can find a solution that each state can agree on. Though it is a very strenuous case and very time consuming, it has to be appointed because it is affecting farmers everywhere which then affects the consumers of the crops and other industries that rely on the crops. From being raise around farming and living in a community that is solemnly based on farming there issue hits a little close to home. Not only that, but the meetings are close to home and involve many of the hometown residents. This issue will always continue until each state comes to an agreement and it will be difficult because each planting year is different and you can’t control the weather. Though some people might find it unnecessary to a farmer it is very important.

Works Citied
"Republican River Compact Details." Colorado Division of Water Recourses. N.p., n.d. Web. 07 May 2015.
“Republican River Compact”. Kansas Department of Agriculturet. N.p., n.d. Web. 07 May 2015.
Ganzel, Bill.

"Paying Farmers to Not Irrigate." Farming from 1970’s to today. Wessels Living History Farm, 2009. Web. 07 May 2015.

Gerlock, Grant. "Farmers Feeling Heat in Republican River Dispute." Farmers Feeling Heat in Republican River Dispute. Harvest Public Media, 9 Aug. 2012. Web. 07 May 2015.

Hendee, David. "Kansas' Accusation That Nebraska Violated Republican River Pact Lands at U.S. Supreme Court." Omaha.com. N.p., 13 Oct. 2014. Web. 7 May 2015.

Keller, David. "Court-Appointed Special Masters: Dispute-Resolvers?" Mediate.com. Mediate.com, n.d. Web. 07 May 2015.

Parker, Glenn L. "Kansas-Nebraska-Colorado Republican River Compact 1943." Kansas Department of Agriculture. Department of Agriculture, 2012. Web. 7 May 2015.

Rosales, Daniel, and Rose N. Petoskey. "Kansas v. Nebraska and Colorado." Legal Information Institute. Cornell Law, n.d. Web. 07 May 2015.

Soronen, Lisa. "Supreme Court Resolves Water Rights Interstate Compact Dispute between Kansas and Nebraska." The Council of State Governments Knowledge Center. The Council of State Governments, 2013. Web. 7 May 2015.

Tart, Keith. "The Republican River Compact: Will Kansas and Nebraska Ever Co-Exist?"University of Denver Water Law Review at the Sturm College of Law Comments. University of Denver, 5 Jan. 2015. Web. 07 May

2015.