January 2009
U.S. Water News Online
TOPEKA, Kan. — The Kansas attorney general's office is downplaying a recent, adverse decision in arbitration over the Republican River.
Kansas and Nebraska have been locked for a decade in a legal dispute over what Kansas has argued is Nebraska's overuse of water from the river. Their dispute led to a U.S. Supreme Court decree in 2003.
Kansas still contends Nebraska used too much water in 2005 and 2006 and sought $72 million in damages.
An arbitrator hired to help settle disputes between the states has decided Kansas can only seek payment for damages it allegedly suffered, not payment for what Nebraska allegedly gained.
But Ashley Anstaett, a spokeswoman for Kansas Attorney General Steve Six, says the arbitrator's decision "is just one step in a long process.''
Nebraska officials say Kansas hasn't provided any estimate of alleged damages from overuse of the river. Water officials have speculated that damages might be just a fraction of the $72 million claim that the arbitrator's decision undercuts.
The decision by the arbitrator is not binding and doesn't limit what Kansas could seek in court.
The demand for $72 million came in April, when David Barfield, the chief engineer for Kansas' Division of Water Resources, sent a letter to Nebraska officials. Barfield estimated that Nebraska received economic gains of $63 million by not complying with the compact.
He added 15 percent to that figure to cover Kansas' legal costs and create an incentive for Nebraska to comply, to reach the $72 million.
It is unclear what importance the arbitrator's decision would have should the dispute land in court. Nebraska Attorney General Jon Bruning has said the decision by arbitrator Karl Dreher, a water expert, could carry significant weight.
Kansas alleges Nebraska used about 72,000 acre feet more than allowed under the three-state compact in 2005 and 2006. Besides demanding $72 million, Kansas has said Nebraska should shut down wells that irrigate nearly half of the 1.2 million acres in Nebraska's portion of the river basin.
Nebraska has not met the demand, and instead plans to get in compliance with the compact with measures such as buying and leasing water. Kansas officials have called Nebraska's compliance plan inadequate.
It's not clear how much Kansas might try to claim in damages. Kansas hasn't provided any estimate of the damages suffered under the compact and a 2003 U.S. Supreme Court decree governing water use.
The decision by the arbitrator hired to help resolve disputes between the two states is not binding and doesn't limit what Kansas could seek in court.
But Nebraska Attorney General Jon Bruning said the decision by arbitrator Karl Dreher, a water expert, could carry significant weight if the water fight does end up in court.
"I am pleased the arbitrator's preliminary decision recognizes that Kansas' claims are limited to actual damages, if any can be shown, and that it is important for compact accounting to reflect reality,'' Bruning said.
A spokeswoman for Kansas Attorney General Steve Six said they we were reviewing the decision.
"We'll continue forward with the nonbinding arbitration and continue to fight for Kansas' water rights,'' said Ashley Anstaett.
Should disputes not be settled in arbitration, they could land in the U.S. Supreme Court.
In 2005 and 2006, Kansas alleges that Nebraska used about 72,000 acre feet more than allowed under the three-state compact. Besides demanding $72 million, Kansas has said Nebraska should shutdown wells that irrigate nearly half of the 1.2 million acres in Nebraska's portion of the river basin.
Nebraska has not met the demand, and instead plans to get in compliance with the compact with measures such as buying and leasing water. Kansas officials have called Nebraska's compliance plan inadequate.
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