This past week the Supreme Court made a decision on the decades long debate over the Republican River mandating that Nebraska pay Kansas $5.5 million in damages for violating the terms of the Republican River Compact. Both states claim this ruling as a win, but did both really come out equitably?
The Republican River crosses Colorado and Nebraska flowing southeast into Kansas. In 1943, the Republican River Compact was ratified by Colorado, Nebraska, and Kansas; this compact allocated certain amounts of water to each state. Kansas and Colorado soon after set regulatory agencies in place to monitor water usage, Nebraska did not. Over the following decades, Nebraska has drawn up more than its share of water during drought years, leaving less water available downstream for Kansas. Nebraska also claimed the Republican River Compact only affected surface water, and therefore allowed farmers to draw up as much groundwater as they needed. The overuse of groundwater also affected the amount of water going into Kansas. The Supreme Court rules in 2002 that both groundwater and surface water fall under the compact.
The $5.5 million that Kansas was awarded is only 7% of $80 million that it claimed was due. Kansas also appealed for Federal oversight of the river and for an immediate halt on irrigation to 200,000 acres of Nebraska cropland in the basin. The court declined both. Nebraska counts continued irrigation, lack of federal control over the river, and the lowered penalty as a victory.
The ruling in Kansas’s favor vindicates its rights as a downstream state. While this may be the biggest victory for Kansas, it doesn’t offer much consolation. Nebraska has not been held accountable for drawing up more water than its fair share during past droughts. The court had previously recommended remedial actions be taken by Nebraska, and while Nebraska has voluntarily taken steps to improve conditions in the past years, it has avoided major reform.
Main points of division that lead to this case ultimately ending up at the Supreme Court has to do with differing water laws in Kansas and Nebraska. Water laws differ from state to state, are often difficult to interpret, antiquated, and vague; the system of water rights is a complex labyrinth of authority, ownership, and responsibility. The Republican River dispute is good example of how differing interpretations of the law governing a sharing resource can be difficult of reconcile. The two states have contentious views on surface water and groundwater. Nebraska currently has not successfully integrated groundwater and surface water law, and instead allows local natural resource districts (NRDs) to implement restrictions as they felt necessary. Attempts to change groundwater regulation have been unsuccessful, and not meet with public support. The Kansas Legislature adopted the Kansas Water Appropriation Act, which combined the groundwater and surface water doctrines into a single statutory scheme. It would be like playing games, but both players have slightly different sets of rules and there is no referee.
Natural resources don’t usually fall neatly into our delineated political boundaries, they may stretch and wonder across cities, counties, and states. This is not the only dispute of its kind. As increasing number of farmers depend on groundwater to irrigate their fields in both states, the stakes are heightened on this resource that is both essential and finite. While this ruling has set a path toward the right direction, it is unlikely that this will be the final debate over this river. Instead, it is likely that in the future more conflicts like this one may arise. Similar ones are happening in our own backyard.