U.S. Supreme Court rules in Kansas-Nebraska fight over Republican River

Feb. 24, 2015, 5:35 a.m. ·

The Republican River near Cambridge, Nebraska (Photo by Fred Knapp, NET News)

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The U.S. Supreme Court Tuesday resolved a lawsuit between Kansas and Nebraska over Republican River water.

Under the decision, Nebraska will have to pay Kansas $5.5 million for overusing irrigation water in the Republican River basin in 2005 and 2006. That was the amount recommended by a so-called "special master" in November, 2013.

Of the $5.5 million, $3.7 million is for damages to Kansas farmers for Nebraska’s overuse of water. Another $1.8 million is for "disgorgement," which special master William Kayatta called "a small portion of the amount by which Nebraska’s gain exceeds Kansas’s loss."

Kansas Attorney General Derek Schmidt chose to emphasize that aspect of the decision. "For the first time in the history of interstate water law, the U.S. Supreme Court has ordered an upstream state to give up some of its unjust gains from keeping water that did not belong to it," he said.

Nebraska officials celebrated that the total was far less than the $80 million requested by Kansas. "This is a good day for Nebraska," Gov. Pete Ricketts said, while acting Director of Natural Resources Jim Schneider called it a "win for Nebraska’s farmers and ranchers.

Nebraska officials also celebrated the fact that the court agreed that the state should get credit for water that seeps from the Platte River basin into the Republican. Attorney General Doug Peterson called that the most important issue in the case.

The accounting change is expected to have immediate consequences for farmers along the Republican River this year. Brad Edgerton is manager of the Frenchman Cambridge Irrigation District which provides irrigation water from the Republican River to more than 45,000 acres of farmland. Last year, canals were shut off to make sure Kansas got enough water. Edgerton says the court’s decision means things will be different this year. "We are anticipating having our natural flow and storage permit opened up so we can divert the waters of the Republican River into our system this summer. So it’s a big deal to us," he said.

Don Blankenau, outside counsel to the Nebraska Attorney General’s office in the case, said the decision could end decades-worth of legal battles between Nebraska and Kansas over the Republican River. "I really believe that this is more than the closing of a chapter. I think it’s the closing of a book," he said. "I don’t think Kansas believes Nebraska will violate in the future. And I know the existing people at DNR the Nebraska Department of Natural Resources) certainly have that view."

Kansas Attorney General Schmidt sounded a little more skeptical. "Kansas brought this lawsuit to encourage our neighbors to the north to live up to their obligations in future dry periods," he said, adding "I’m hopeful this strong and clear Supreme Court order will have exactly that effect."

Nebraska state Sen. Ken Schilz, chairman of the Natural Resources Committeee, was asked if he thinks the legal battle between Kansas and Nebraska over the Republican River could ever really end. "I do. I really do," he said.

However, Schilz added "It’s up to us… we have to start managing things differently than we have in the past. And that means that we’re going to have to look at things differently. It’s going to take time.

In her opinion for the court, Justice Elena Kagan wrote that Nebraska is now on notice that if it overuses water again, it could again be subject to disgorgement, or paying for its gains. "That, we trust, will adequately guard against Nebraska’s repeating its former practices," Kagan wrote.