State v. States Colorado

2015-02-24

Headline: Republican River ruling requires Nebraska to pay damages and partial disgorgement, denies an injunction, and reforms accounting so imported Platte River water won't count against Nebraska's allotment, affecting farmers' irrigation.

Holding: The Court accepted the Special Master's recommendations, found Nebraska knowingly exceeded its 2005–2006 water allocation, awarded $3.7 million damages and $1.8 million partial disgorgement, denied an injunction, and reformed accounting procedures.

Real World Impact:

Nebraska must pay $3.7M damages and $1.8M disgorgement.
Accounting changes exclude Platte River water from Nebraska's allotment calculations.
No court injunction; compliance enforced through money and new accounting rules.

Topics: interstate water rights, river water allocation, groundwater pumping, state water accounting

Summary

Background

Kansas and Nebraska disputed how to share water from the Republican River Basin under a 1943 interstate compact and a 2002 settlement meant to measure and enforce each State's share. Nebraska built thousands of wells and, in the 2005–2006 accounting period, used about 70,869 acre-feet more than its allotment. The Republican River Compact Administration and later a Special Master examined the facts, and Kansas sought money and an injunction while Nebraska sought correction of technical accounting that it said wrongly charged it for Platte River (imported) water.

Reasoning

The Court reviewed the Special Master's findings and accepted them. It agreed that Nebraska had “knowingly” exposed Kansas to a substantial risk of violation by delaying and underenforcing water controls, so Nebraska must pay $3.7 million in damages. The Court also approved a modest $1.8 million disgorgement of Nebraska's extra gains, declined to enter an injunction because Nebraska has since adopted stronger controls, and ordered reform of the Settlement’s Accounting Procedures by adopting the Master’s “5-run” approach to exclude imported Platte River water from Compact accounting.

Real world impact

The decision enforces the Compact as federal law, requires monetary relief, and changes the technical method used to count water so that imported Platte River water will not reduce Nebraska's Basin allotment. Farmers, water districts, and state agencies in both states will see changes in how use is measured and in incentives to limit pumping.

Dissents or concurrances

Several Justices agreed on the facts but disagreed about remedies: some would have rejected disgorgement or refused to rewrite the parties’ agreed accounting procedures.