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Friday, Aug. 22, 2014

Republican River arbitrator leaves many questions unanswered

Wednesday, July 1, 2009

An arbitrator said Nebraska isn't doing enough to comply with the Republican River Compact, but leaves details of how to do so up to the state.

Kansas should receive a nominal $10,000 award until it proves how much damage it has actually suffered, the Colorado-based arbitrator said.

Nebraska won't have to shut down all wells within 2.5 miles of the stream, as Kansas suggests, but Nebraska's NRD's integrated management plans aren't doing enough to keep the state in compliance, the arbitrator, Karl Dreher said.

Kansas had originally sought about $72 million in damages, but in recent months, it lowered the figure to $9 million after the arbitrator said the state could only seek damages for what it suffered, not payment for what Nebraska gained.

In his final report released late Tuesday night, Dreher also said Nebraska should not have shut down wells providing water to about half the irrigated acres in Nebraska's portion of the Republican River basin, as requested by Kansas.

But he did recommend irrigation be reduced in the basin.

The arbitrator's recommendations are not legally binding, so the dispute may land in court.

Integrated management plans created by the three Republican River Natural Resources Districts "are inadequate to ensure compliance with the Compact" during drought years like 2002 through 2006, he said.

"Nebraska and the Republican River NRDs should make further reductions in consumptive groundwater withdrawals beyond what's required in the currend UMPs and should obtain permant, interruptible supply contracts with surface water irrigators to ensure compliance ... during prolonged dry-year conditions."

While shutting down all wells isn't necessary, "Kansas is entitled to injunctive relief enjoining Nebraska from exceeding its future allocations.

"Should Nebraska fail to comply with an injunction, sanctions may be appropriate in addition to the award of additional damages to Kansas. While such sanctions may be significant, those sanctions should be based on the specific circumstances of Nebrsaka's failure to comply."

A complete text of the arbitrator's final decision is available at http://www.waterclaim.org/legal/finalarb..., with analysis at http://www.water claim.org/blog/

The official ruling was dropped in the mail Tuesday, leaving Nebraska officials in the dark as to its contents.

It can, however, be accessed here along with Steve Smith of WaterClaim's analysis here.

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