KANSAS v. NEBRASKA AND COLORADO
The Republican River Basin is a watershed that encompasses parts of Colorado, Nebraska, and Kansas. On December 31, 1942, the states ratified a compact to agree on an interstate allocation of the Basin’s resources, which Congress enacted on May 26, 1943. In accordance with the compact, the states created the Republican River Compact Administration (RRCA) to determine whether each state has stayed within its allocation for that year.
Beginning in the 1980s, Kansas reported to the RRCA that Nebraska was violating the terms of the compact by allowing increasing groundwater development, which was reducing the inflow of water to Kansas. Nebraska argued that groundwater pumping was not subject to the compact. In 1999, the Supreme Court granted Kansas’ motion for leave to file a bill of complaint against Nebraska and appointed a Special Master who concluded that the compact covered groundwater pumping when it impacted the water supply. After further negotiations, Kansas, Nebraska, and Colorado entered into the Final Settlement Stipulation (FSS), which further established procedures for compliance with the compact.
In 2008, Kansas alleged that Nebraska had overused its water allocations while continuing the groundwater pumping. Kansas sought monetary damages and relief to ensure Nebraska’s future compliance; Nebraska rejected those demands and argued that errors in the FSS procedures prevented an accurate accounting of each state’s allocation. Pursuant to the FSS, Kansas and Nebraska presented their claims for non-binding arbitration. The arbitrator held that Kansas had clearly incurred damages but failed to adequately prove those damages. Kansas subsequently sought leave to file a petition in U.S. Supreme Court, but Nebraska argued that that Kansas’ claims did not merit exercise of the Court’s jurisdiction while Nebraska’s claims about errors in the FSS procedures did.
Did Nebraska violate a compact apportioning the water resources of the Republican River among Kansas, Nebraska, and Colorado?
(1) If so, what relief is appropriate?