Argument preview: Compact to conflict – three states argue over one river
on Oct 12, 2014 at 8:25 pm
Ryke Longest is the Director of the Environmental Law and Policy Clinic and a Clinical Professor of Law at the Duke University School of Law.
On October 14, the Court will hear an original jurisdiction dispute between three states that share interests in the flows of the Republican River: Kansas, Colorado and Nebraska. Following passage of a congressionally approved compact, the states initiated litigation leading to a 2003 settlement stipulation. In next week’s case, the Justices will consider different views on the terms of the settlement stipulation and the appropriate remedies available.
Origins of the Republican River Compact
The Republican River begins in Colorado on the eastern side of the Rocky Mountains, then flows through part of Kansas. The river then crosses and into Nebraska before crossing back into Kansas, where it then turns southeasterly. In Junction City, Kansas, it joins with the Smoky Hill River to become the Kansas River, a tributary of the Missouri River.
More than 24,000 square miles of watershed on the Great Plains support the flow of the Republican River. This territory contains rich agricultural soils and relatively abundant average annual rainfall. During the Great Depression, the three states and the federal government planned to use the Republican River for water resource development. This area was at the western edge of the Great Plains Dust Bowl, which experienced horrific dust storms in 1934 through 1935 that carried tons of soil through the air as far as the Atlantic Ocean.
Federal relief programs were mobilized to help the residents respond to the terrible conditions. A devastating flood on the Republican River in 1935 hastened along state and federal planning to create both flood control and irrigation projects. Federal agencies endorsed the need for the projects as well as their feasibility, but the Bureau of Reclamation warned that they should not go forward until the three states entered into a compact.
The states had agreed to terms within a few years, but President Franklin Delano Roosevelt vetoed the first attempted compact in response to objections by federal agencies. On December 31, 1942, on their second attempt, the federal government and Colorado, Kansas, and Nebraska agreed to an interstate compact to allocate water flowing in the Republican River. This compact was then ratified by the state legislatures, approved by Congress and signed into law by the President on May 26, 1943. However, rather than resolving all controversy about water allocation between the parties, the compact merely moved the locus of the disputes. Since its signing, disputes between the states over water use focus on the compact’s terms.
Origin of disputes under the Compact
Flows in the Republican River have been declining for decades, with reduced flows in nearly all its tributaries. The reduced flows alarm farmers in all three states who rely on irrigation to keep crops at profitable yields. As the primary downstream users, Kansans look to the compact to protect them from overuse by upstream users. As the state with the largest allocation, Nebraskans look to the compact to protect their farmers from unreasonable demands from Kansans.
When use increases and flows decrease, disputes follow. As the aphorism often attributed to Mark Twain goes, “Whiskey is for drinking, but water is for fighting.” Disputes among users and their political leaders come quickly behind the spread of economic prosperity.
Under the compact, disputes first flow through the Republican River Compact Administration, which consists of one representative of each of the three states. Following ratification, all states needed to change water resource allocation laws within their respective states to ensure compliance with the new compact’s requirements. In 1945, Kansas enacted a statute that combined allocation of groundwater and surface water into a unified permitting system using prior appropriation principles. In Nebraska, allocation of groundwater remained subject to restriction by common law principles of reasonable use within the context of correlative rights as set forth in the 1933 case of Olson v. City of Wahoo. The state codified these principles in 1975 and later adjusted its groundwater law in 1996 with amendments under LB 108, promoted by Nebraska Governor Ben Nelson. Nebraska’s efforts under LB 108 were clearly designed to prevent allocation of groundwater in a way that causes violations of an interstate compact. Yet its critics maintain that these efforts hampered management by putting the fox in charge of the henhouse (local Natural Resource Districts).
Groundwater’s special place
When the compact was signed, one of its key purposes was to remove all causes that “might lead to controversies.” Yet, within its key terms lay the seed of controversy: the term “Virgin Water Supply.” It was defined as the “water supply within the Basin undepleted by the activities of man.” Nebraska interpreted the caveat “within the basin” to exclude groundwater pumping from the scope of activities that deplete the Virgin Water Supply. The compact defines “basin” as the “area naturally drained by the Republican River and its tributaries.” Nebraska’s argument unduly restricted the scope of the Virgin Water Supply by taking the groundwater that drains into the Republican River and its tributaries out of the compact.
In many places, the Republican River is a gaining stream, one where groundwater from alluvial and surficial aquifers seeps into the riverbed. Excluding groundwater from allocation formulas in a gaining stream will always lead to problems unless groundwater pumping from alluvial and surficial aquifers is completely prohibited. In a gaining stream system, these aquifers are just as important sources to stream flow as the surface tributaries. However, these flows are harder to measure, model, and quantify.
Litigation before the Supreme Court: Round I
In 1999, the Supreme Court granted Kansas’s motion for leave to file a bill of complaint. Kansas complained that Nebraska had violated the compact by allowing proliferation of thousands of groundwater wells that were connected to the Republican River. Kansas’s complaint asserted that Nebraska’s regulatory apparatus failed to prevent the violations into the future, and it asked for damages and a decree commanding Nebraska to meet its delivery obligations under the compact. Nebraska sought leave to file a motion to cismiss the complaint under Federal Rule of Civil Procedure 12(b)(6) and presented affirmative defenses to Kansas’s complaint. Nebraska’s Rule 12(b)(6) motion was limited to the question whether the compact applied to groundwater consumptive use within Nebraska. Colorado responded that groundwater from alluvial aquifers was included within the compact but groundwater from the deeper Ogallala aquifer was not. The Court appointed a special master to preside over the hearing, after which the special master’s report recommended that Nebraska’s motion be denied. In June 2000, the Supreme Court denied Nebraska and Colorado’s exceptions and sent the case back. Following a series of memoranda on various issues by the special master, the parties negotiated a settlement stipulation.
Republican River Compact settlement stipulation
The settlement stipulation imposed additional obligations on the parties beyond those required by the Compact itself. All parties waived any claims against each other arising prior to 2002, and the stipulation required a drilling moratorium on wells within the Republican River Basin. It also explicitly recognized that groundwater was a component of the Virgin Water Supply. Beyond that, the parties to the current dispute disagree about significant aspects of the settlement stipulation as well as the special master’s report. While the stipulation established that the scope of covered water was water originating in the basin, there arose a dispute over the method of accounting for “imported water” – water that was originally part of the neighboring Platte River Basin but now percolates into the Republican River. In places, this seeping imported water had raised the water table by ten feet. The special master has proposed changing the accounting procedure so that Nebraska may use water imported from the Platte. Kansas vehemently objects that this change violates the terms of the compact.
Each state will argue objections to the special master’s report. Expect to hear Kansas argue forcefully in favor of the Court strengthening its disgorgement remedies against Nebraska and requesting injunctive relief. Nebraska will argue that the special master’s disgorgement remedy was too harsh. Nebraska also admits that it overused its allocation for the year 1996, but that in so doing it did not violate the compact but took steps immediately thereafter to reduce consumptive use and to pay Kansas for its actual damages. Kansas also objects to the special master’s proposed amendment to the settlement stipulation, a remedy defended by Nebraska. Colorado will argue that the disgorgement is not allowed for unintentional violations by Nebraska and that the proposed award represents a windfall for Kansas. The Solicitor General will argue that the special master’s report falls within the scope of the broad discretion afforded the Supreme Court in fashioning remedies for breaches of compacts. He will defend the partial disgorgement remedy as protective against efficient breach concerns, but he will also argue against Kansas’s request for injunctive relief. It will be interesting to see whether the Court inquires about injunctive relief as a further protection against efficient breach concerns.