OMAHA — A special water master found Friday that Nebraska took more than its share of water from the Republican River in 2005 and 2006 and recommended that it pay Kansas $5.5million for the breach.
But the report submitted to the U.S. Supreme Court rejected Kansas’ demands for more than $80million from its northern neighbor, as well as an order that would permanently shut off irrigation pumps on more than 300,000 Nebraska farm acres in the river basin.
The report comes two years after the U.S. Supreme Court gave Kansas permission to file a new petition over allegations that Nebraska took more than its share of water for irrigation in 2005 and 2006 – enough to supply a city of 100,000 people for a decade.
Use of the Republican River’s water is governed by a 1943 compact between Colorado, Kansas and Nebraska. Colorado was given 11 percent of the water, while Nebraska was allotted 49 percent and Kansas 40 percent.
In the 1990s, farmers and officials in Kansas accused Nebraska of surpassing its share. Officials in both states had hoped a 2003 settlement would end the dispute. But in 2009, Kansas officials contended that Nebraska used 25.7 billion gallons more in water from the Republican River than it was due in 2005 and 2006.
An arbitrator found that Nebraska’s natural resource districts should cut back on water allocations to farmers – a suggestion Nebraska rejected. But the arbitrator also recommended that Nebraska pay only $10,000 in monetary damages to Kansas.
Kansas officials objected, and Maine attorney William Kayatta Jr. was named the special master. Kayatta was confirmed earlier this year as a judge on the 1st U.S. Circuit Court of Appeals in Boston.
Lawsuits among states over water are filed directly with the U.S. Supreme Court, which typically appoints a special master to review evidence and make recommendations to the justices.
In his report Friday, Kayatta rejected Kansas’ demand for appointment of an independent river master to dictate compliance terms for water use. The report also rejected Kansas’ request that Nebraska be found in contempt.
But because Nebraska took inadequate steps to conserve the river’s water use during drought in the last decade, he said, the state should pay Kansas $5.5million. That amount consists of $3.7million for economic losses suffered in Kansas because of Nebraska’s overuse of water and an additional $1.8million in disgorgement, or the repayment of ill-gotten economic gain.
“The shortage in water supply between 2002 and 2006 allows Nebraska to say that it suffered some bad luck, and perhaps might have complied with the compact had it received good luck in the form of wet years,” Kayatta wrote. “The fact remains, though, that prior experience rendered it foreseeable that there would likely be both dry and wet periods, and Nebraska took steps adequate, at most, only for the latter.”
The report will be reviewed by the Supreme Court, which is not expected to issue a final ruling until next year.
Attorneys general for both Nebraska and Kansas lauded Kayatta’s 200-page report.
“Our basin irrigators have worked hard to keep Nebraska in compliance with the compact on an annual basis since 2007,” Nebraska Attorney General Jon Bruning said in a statement. “And, although we think the $5.5million award is too high, we’re glad the special master acknowledged Nebraska should have the right to govern its water users without the oversight of an independent river master.”
Kansas Attorney General Derek Schmidt called the report’s recommendation to include disgorgement of unjust gains in calculating damages 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,” Schmidt said in an e-mailed statement.