TOPEKA – (November 15, 2013) – A federal judge has recommended that Nebraska be required to pay $5.5 million to Kansas for using more than its legal share of water in the Republican River during 2005 and 2006 and also has endorsed a new measure for damages to discourage future overuse, Kansas Attorney General Derek Schmidt announced today.
In his long-awaited report, released today, Special Master William J. Kayatta, Jr., recommends that the United States Supreme Court enter judgment in favor of Kansas for $5.5 million as a result of Nebraska's overuse of Republican River water in 2005 and 2006. The Special Master also, for the first time, is recommending that payments for overuse include disgorgement of unjust economic gains that Nebraska receives from keeping more than its share of water in dry years.
"We are greatly encouraged by the Special Master's recommendation," said Schmidt, who noted that the recommendation to include disgorgement of unjust gains in the calculation of damages is a groundbreaking development. "This recommendation, if adopted by the Supreme Court, can change the economics of overuse and send a powerful message to discourage future overuse of water by our neighbors to the north."
The $5.5 million recommended to be awarded to Kansas included $3.7 million for economic losses suffered in Kansas because the water was withheld and another $1.8 million to disgorge part of Nebraska's financial gains from keeping more than its share of water during the years in dispute.
In 2003, Kansas and Nebraska settled a previous dispute over use of water in the basin. Less than two years later, Nebraska violated the settlement agreement and took more than 70,000 acre feet more water than its entitlement. As a result, Kansas went back to court to seek enforcement of the settlement, and in 2011 the United States Supreme Court agreed to hear the dispute. The recommendations announced today will be considered by the Supreme Court sometime next year.
The case is Kansas v. Nebraska and Colorado, Case No. 126, Original.
The Republican River and its tributaries are subject to an interstate compact between Kansas, Colorado, and Nebraska, which was approved by the U.S. Congress in 1943. The Republican River Compact allocates the entire water supply of the river and its tributaries among the three states, requiring each state to not consume more than its share. In 1998, Kansas sued Nebraska for violating the Compact and causing water shortages in Kansas by taking too much water through excessive groundwater pumping. In 2000, the Supreme Court agreed with Kansas that excessive groundwater pumping that depletes stream flow is covered by the Compact, and eventually all three states entered a settlement known as the Final Settlement Stipulation. The Court entered an order approving the settlement in 2003.
In the years following the settlement, when water supplies in the river basin were low, Nebraska once again consumed more than its share of water, causing significant water shortages in north-central Kansas. Kansas' main concern is that Nebraska has failed to take the actions necessary to avoid future violations, especially in the inevitable dry periods to come. In May 2010, Kansas filed a petition with U.S. Supreme Court seeking to reopen the case and obtain remedies for Nebraska's violations.
On April 4, 2011, the U.S. Supreme Court issued an order accepting Kansas' request to re-open the lawsuit. The Court also appointed a special master. The special master functions like a trial judge in Supreme Court cases involving the states. Today's report represents the special master's recommendations to the Court.