The preliminary draft of a federal report on Nebraska's Republican River dispute with Kansas seems to indicate that Nebraska has made serious progress in its efforts to keep enough water in the river to meet its obligations under a 1943 water compact between the states.
That's good news for irrigators as well as all Nebraskans.
The draft report was issued by the U.S. Supreme Court's special master, who will recommend to the high court how to resolve the Kansas-Nebraska dispute.
It indicates that Kansas may be entitled to about $5 million in damages from Nebraska — down substantially from the $80 million figure that top Jayhawk State officials have bandied about. Nebraska Attorney General Jon Bruning said he believes even $5 million is too high.
Special Master William J. Kayatta's final report isn't due for several months. The draft did find that Nebraska had violated the compact in 2005 and 2006, removing almost 71,000 acre-feet more water from the river than it was entitled to. That's the basis for the $5 million.
However, the master didn't go along with Kansas' demand for injunctive relief, meaning Republican River irrigators won't have their underground wells shut down by court order. “This report is a positive step for our basin irrigators who have worked hard to keep Nebraska in compliance with the compact on an annual basis since 2007,” Bruning said.
Compliance comes in large part thanks to historic state water management legislation passed in 2007. Legislative Bill 701 set up a system that allowed the three Republican NRDs to tax irrigators to fund projects that benefit the river's flow. It also set up an $8 million state fund for Republican projects, including water purchases from irrigation districts.
The water management legislation also gave the state Department of Natural Resources the responsibility to oversee the NRDs and require more conservation measures to keep Nebraska in compliance. The DNR exercised that power early this year because of the ongoing drought, ordering the Lower and Upper Republican River NRDs to find additional conservation tactics to add about 9,000 acre-feet of water to the river's flow. And water that usually would be held in reservoirs along the river will remain in the river.
The special master's preliminary recommendation is particularly welcome because of a nagging worry for the Republican NRDs and state officials that Nebraska would have to pay a multimillion-dollar penalty — perhaps up to Kansas' eye-popping $80 million claim — to settle the dispute. It is in part thanks to Bruning, who deserves considerable credit for his aggressive advocacy for the state's position, and his staff's hard work that the original high-dollar claim did not prevail.
The master's report seems to accept that Nebraska has been in compliance with Republican River compact rules since 2007, which should make Nebraskans pleased with state leaders and lawmakers for their effective, though hard fought, approach to a sticky dilemma.
LB 701 worked as it should have, the three Republican River NRDs have, for the most part, done their jobs well and the state DNR has accomplished its aim with effective oversight.