River dispute headed for non-binding arbitration

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By ALGIS J. LAUKAITIS / Lincoln Journal Star

Although no agreement was reached Friday in a long-standing dispute over Republican River water, three states — Nebraska, Kansas and Colorado — tentatively agreed to take the next step of non-binding arbitration.

Brian Dunnigan, acting director of the Nebraska Natural Resources Department, told reporters after the meeting non-binding arbitration could be the next step — but there also could be more discussion.

“Anything could happen,” Dunnigan said.

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The Republican River runs to the south of Arapahoe. (LJS file)

The Republican River runs to the south of Arapahoe. (LJS file)

Kansas claims Nebraska violated an agreement between the three states, using 80,000 acre-feet of water more than it was allocated in the Republic River Basin in 2005 and 2006.

An acre-foot is defined as the amount of water that will cover 1 acre to a depth of 1 foot — or 43,560 cubic feet.

In April, Kansas officials demanded Nebraska pay $72 million for violating the terms of the 1943 compact.

Nebraska Attorney General Jon Bruning has characterized the figure as having “no basis in reality.”

In an interview, David Barfield, chief engineer for the Kansas Division of Water Resources, said he plans to write a letter asking the Republican River Compact Administration, the group that met for about 20 minutes in Lincoln to appoint an arbitrator.

Friday’s special meeting was a continuation of earlier meetings held in March and April. The next meeting is in August.

Barfield said the arbitration process could take six months or longer, but Dunnigan said he wasn’t aware of a timetable.

Dick Wolfe, state engineer for Colorado, got Nebraska and Kansas to agree that if they cannot decide on an arbitrator, a Boulder Colo., firm would be consulted to help find someone.

Wolfe also said the Colorado Legislature recently approved a $60.6 million loan to build a 12-mile pipeline. The pipeline would deliver water to the North Fork of the Republican River at the Colorado-Nebraska line, to help Colorado in complying with the compact.

Although there was no resolution to the controversy, Wolfe said non-binding arbitration was a “good result,”  providing a process to allow the three states to move forward.

Barfield said there is still a fundamental disagreement over the obligations of each state, and Kansas does not agree with the plan proposed by Nebraska to bring it into compliance.

“Kansas is not going to stop short of having those remedies in place,” Barfield said, adding the state wants to recover damages and have an acceptable compliance plan in place for the future.

Dunnigan told reporters the process has allowed the three states to exchange information.

“And I hope this keeps happening,” he said. “There certainly will be a way forward and it will be procedural.”

All three states must accept a recommendation by an arbitrator; however, if one does not, the matter could go to the U.S. Supreme Court.

Reach Algis J. Laukaitis at 402-473-7243 or alaukaitis@journalstar.com.