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Understanding Nebraska's water obligations
Recent comments by Kansas Attorney General Paul Morrison at the Republican River Compact meeting have created some concern in Nebraska about the future. Keeping in mind that no one can predict the future, here is the history of the compact and the legal landscape as it exists today.
Nebraska entered into a compact with Kansas and Colorado in 1943. That agreement gave 49 percent of the water in the Republican River to Nebraska, 40 percent to Kansas and 11 percent to Colorado. Each year the supply changes depending on the rain in the basin and the amount of water stored in the seven federal reservoirs. In 1998, Kansas sued Nebraska and Colorado claiming we both were using more than our share. The case was settled, in part, after the U.S. Supreme Court ruled that depletion to river flow caused by groundwater use would count as part of the supply available to the states and did not find any state used more than its share. The settlement determined how states would include groundwater use in the compact accounting.
Even with the inclusion of groundwater use, in normal water conditions like those in 1995 through 2001, Nebraska uses less than its allocation each year. Seven years of drought, however, have brought available supply to an all-time low. In response, Nebraska no longer allows increases in irrigated acres or new wells, and limited groundwater allocations were adopted throughout the basin. Many groundwater users have reduced their pumping even lower than their allocations allow. Similarly, surface water users have agreed to relinquish the use of their water so that it can be given directly to Kansas. Nebraska also has reduced the number of irrigated acres through the CREP and EQIP programs.
So what happens next? In normal years, Nebraska's water use is well within its compact share. In non-normal drought years, additional measures are needed. These include adopting lower allocations and working out long-term surface water leases to send across the state line. These water leases provide the best bang for the buck for Nebraska and for Kansas. Vegetation management may also be useful.
As for compact compliance, the compact provides for the water administrators in the three states to meet and agree on the compact numbers. That process will move forward this fall. If the states cannot agree on the numbers, the settlement includes a dispute resolution mechanism. The dispute resolution process includes nonbinding arbitration. If the dispute is not resolved by arbitration then any state has the option of presenting the issue to the U.S. Supreme Court.
No one wants more litigation. Our hope remains that we can work with Kansas to ensure Nebraska gets the water it is entitled to and meets its obligations under the compact. We know that's a tall order. If we can't avoid court, rest assured I and my office will do everything we can to defend Nebraska's interests.