On May 26, 1998 the State of Kansas filed a complaint to the United States Supreme Court that claimed the State of Nebraska had violated the Republican River Compact by allowing the unimpeded development of thousands of wells in hydraulic connection with the Republican River and its tributaries. Kansas further alleged that Nebraska was using more water than its allocation under the compact and was depriving Kansas of its full entitlement. The States of Kansas and Nebraska were joined by the United States as amicus curiae in providing a briefing to the Supreme Court on January 19, 1999, which accepted the lawsuit to be known as Kansas v. Nebraska and Colorado, No. 126 Original. The State of Colorado was joined in the lawsuit because the headwaters of the Republican River rise within that state and it is a party to the Republican River Compact.
The State of Nebraska denied Kansas’ allegations and filed a Motion to Dismiss the case upon their premise that the Republican River Compact did not specifically mention ground water, therefore ground water cannot be restricted or included in the allocation or consumptive use computations. The State of Kansas argued the opposite and asserted all forms of ground water should be included within the computation of virgin water supply and consumptive use. The State of Colorado offered an intermediate position and claimed the compact and historic practice of the RRCA justifies the inclusion of alluvial ground water, but does not include wells located on the tablelands that pump from the Ogallala aquifer. The Supreme Court appointed Vincent L. McKusick to serve as Special Master to hear the lawsuit on November 15, 1999. Special Master McKusick held a hearing on January 4, 2000 to receive oral arguments from the three states and the United States as amicus curiae. After careful review of the briefs, Republican River Compact language, extrinsic evidence, and case law, Special Master McKusick issued a decisive ruling twenty-four days later that denied Nebraska’s Motion to Dismiss and concluded ground water is to be included within the allocation and consumptive use computations in the Republican River Compact. As to the alleged ambiguity of inclusion of ground water within the Republican River Compact allocation system because the compact is silent on the term “ground water”, Judge McKusick found:
“Nebraska’s assertion that the Compact does not restrict ground water pumping because it never mentions ground water misses a critical fact: Although the Compact never uses the word “ground water”, streamflow, which the Compact fully allocates, comes from both surface runoff and ground water discharge. Interception of either of those streamflow sources can cause a State to receive more than its Compact allocation and violate the Compact. Thus, the comprehensive definition of virgin water supply, even without use of the express term “ground water”, requires a conclusion that, as a matter of law, a State can violate the Compact through excessive pumping of ground water hydraulically connected to the Republican River and its tributaries”.
The pivotal decision that all sources of ground water was to be included in the allocation system in the Republican River Compact prompted the three states to request a stay in trial schedule to divert their efforts from trial preparation to mediation. Special Master McKusick granted the petition and representatives from the three states began multiple-day settlement discussions on an approximate two-week schedule from December 2001 through March 2002. The parties retained the service of professional mediators to facilitate the discussions and the United States also participated in an advisory capacity. Each state composed a representative team for the settlement discussions that included the respective State Engineer/RRCA member, Engineer Adviser/Engineering Committee member to the RRCA, and legal counsel. On April 3, 2002 the States reached tentative agreement of the major issues and signed an Agreement in Principle. Special Master McKusick recognized the good faith efforts of the parties and granted another extension to the trial schedule to allow the three states time to reach a final mutually acceptable resolution. Resuming the aggressive mediation schedule, the States of Colorado, Kansas, and Nebraska successfully reached accord and presented a comprehensive Final Settlement Stipulation to Special Master McKusick at a hearing in Denver, Colorado on December 15, 2002. The Final Settlement Stipulation contained the following principal features:
- - Waiver of claims. All three States agreed to forever waive all claims against each other that related to use of water in the Republican River Basin prior to December 15, 2002.
- - Ground water modeling. The States agreed to form a committee composed of representatives from each state to construct a comprehensive ground water model to determine the amount, timing, and location of depletions from ground water pumping that accrue to the Republican River and its tributaries by July 1, 2003.
- - Moratorium on the construction of new wells. The Final Settlement Stipulation imposed a moratorium on the construction of new ground water wells in Nebraska upstream of Guide Rock, Nebraska to match the de facto moratorium in Colorado and Kansas.
- - Mechanisms for future Compact administration. The Final Settlement Stipulation contained numerous clarifications and accounting improvements that will assist the RRCA in administration of the Compact. The clarifications and improvements include: revised water accounting procedures and formulas; use of a five-year running average for computing virgin water supply and consumptive use; extensive information and data sharing requirements; and commitments by each state to take specific water administrative actions during water-short years.
- - Dispute resolution system. The Republican River Compact is silent on enforcement matters and the Final Settlement Stipulation contains specific procedures to encourage the resolution of disputes, including binding arbitration.
- - Commitments to future joint efforts. The Final Settlement Stipulation endorses the intent of the Republican River Compact to maximize the beneficial consumptive use of water. The three states agree to cooperate with the federal government in conducting studies to assess the impacts of non-federal reservoirs and land terracing upon the virgin water supply in the basin, to calculate and account for the evaporation from small non-federal reservoirs, and to study the feasibility of improving the water delivery and storage infrastructure in the Bostwick Irrigation Districts to improve the efficient use of water resources.
The Supreme Court approved the Final Settlement Stipulation on May 19, 2003 and recommitted the action to Special Master McKusick for the sole purpose of deciding procedural questions that may arise during the completion of the RRCA Ground Water Model by the states. The water resource engineering and ground water modeling experts from the States of Colorado, Kansas, and Nebraska completed the RRCA Ground Water Model and submitted it to the court on July 1, 2003. Special Master McKusick filed a final report to the Supreme Court that certified adoption of the RRCA Ground Water Model by the States of Colorado, Kansas, and Nebraska and recommended dismissal of the case. The Supreme Court accepted the recommendation and Final Report of the Special Master, including final dismissal of the case with prejudice on October 20, 2003.
The Colorado State Engineer is working with elected officials and local water users to create an administrative body that will be used to identify and fund compact compliance measures to assure Colorado meets the terms of the Republican River Compact and the Final Settlement Stipulation. Three collaborative work sessions were held in the early Spring 2004 and these activities will continue through the end of the year.