The latest ruling in the ongoing Republican River saga provides new evidence of why battles over water seem to go on forever without reaching a conclusion.
Posted: Thursday, July 2, 2009 12:00 am
The latest ruling in the ongoing Republican River saga provides new evidence of why battles over water seem to go on forever without reaching a conclusion.
On the surface, the nonbinding ruling looks like a big win for Nebraska.
Kansas originally sought $72 million for what it claimed was Nebraska's failure to leave an adequate amount of water in the river for use by Kansans.
On Wednesday, an arbitrator awarded Kansas $10,000.
A closer examination of the 74-page ruling, however, shows that determinations by Colorado-based arbitrator Karl Dreher are highly tentative. The battle will go on, probably in court.
Dreher said he was awarding only a nominal amount until Kansas could demonstrate that its "assumptions and methodology for estimated lost profits and establishing damages was reasonably reliable either in arbitration or before the court."
The arbitrator wrote that there was no doubt that Kansas sustained damages that "could well be in the range of one to several million dollars."
Originally, Kansas sought $72 million, arguing that it should be entitled to the income that Nebraska farmers collected by overuse of Republican River water. Kansas lowered the amount to $9 million after the arbitrator ruled that it could seek reimbursement only for damages it sustained.
The arbitrator also indicated that when it came to future irrigation in Nebraska, the proper limits are somewhere between Nebraska's current restrictions and the extreme measures proposed by Kansas.
Nebraska needs to make further reductions in consumptive groundwater withdrawals and to obtain permanent contracts with surface irrigators to ensure compliance, Dreher wrote.
But he also specified that Nebraska does not have to shut off irrigation in half the 1.2 million irrigated acres in the Republican River Basin, which area residents said would severely damage the economy of the region.
In the early part of the decade the region was plagued by drought, and the water line in the Harlan County Reservoir retreated almost two miles from its usual boundary at U.S. 183. Normally the reservoir is about 10 miles long.
Recognizing that the state was not complying with terms of its compact with Kansas, Nebraska legislators approved paying Republican River irrigators millions of tax dollars for water in the reservoir so it could instead be sent to Kansas.
Taken as a whole, the arbitrator's ruling could have been a lot worse.
But keep the party hats and noisemakers in storage. At most, this week's ruling should be celebrated by circling an index finger once or twice in the air and muttering a quiet whoop-ti-do.