The Republican River Dispute: an Analysis of the Parties' Compact Interpretation and Final Settlement Stipulation

• Publication year: 2021
• Citation: Vol. 83

83 Nebraska L. Rev. 596. The Republican River Dispute: An Analysis of the Parties' Compact Interpretation and Final Settlement Stipulation

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The Republican River Dispute: An Analysis of the Parties' Compact Interpretation and Final Settlement Stipulation

TABLE OF CONTENTS

I. Introduction ..................................................... 597
II. Factual Background ............................................... 599
A. Laying the Groundwork for a Dispute ........................... 599
B. Procedural Synopsis ........................................... 604
III. Legal Background ................................................ 607
A. The 1943 Republican River Compact ............................. 607
B. State Law Governing Water Appropriation ....................... 610
1. Kansas Water Law ........................................... 610
2. Nebraska Water Law ......................................... 611
IV. Analysis ......................................................... 614
A. Groundwater Was Considered a Component of
Water Allocations Under the 1943 Compact ...................... 615
1. The Compact Can Be Interpreted, Using the
Plain-Meaning Doctrine, to Include
Groundwater ................................................ 615
2. Even if the Compact Is Ambiguous, Compact
Language Includes Groundwater .............................. 618
B. The Final Settlement Stipulation: A Substantial
Improvement, but It May Contain Fundamental
Flaws ......................................................... 623

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1. Improvements Made by the Settlement .............. 624
2. Viability of the Settlement Rests in the Hands of
Nebraska ................................................... 626
V. Conclusion ........................................................ 629

I. INTRODUCTION

Water is one of the most abundant resources on the planet. It is a necessity of life. Most of the Earth' surface is covered with water, but declaring that the planet contains vast amounts of water does not mean that water is always in ample supply. Unfortunately for most landdwelling plants and animals, the only water that can be utilized is fresh water. Fresh water, unlike most of the water encompassing the globe, is in limited supply.(fn1)

In addition, these limited freshwater supplies and their sources are often concentrated in finite locations. As settlements moved west in the nineteenth century, it became necessary to develop a system to allocate this limited resource and to ensure that such a system would provide the most beneficial use of every drop of available water. Before the beginning of the twentieth century, laws concerning the allocation of water dealt primarily with the allocation of surface water found in streams and naturally occurring lakes.(fn2) At this point in history, most wells were shallow handdug wells that were used only for domestic purposes.(fn3) Water used for agricultural and industrial purposes were primarily surface waters, because they were easily accessible and could be diverted in larger quantities.

With the arrival of the twentieth century, technology allowed surface waters to be utilized in greater quantities, and be used farther away from the water' source.(fn4) In addition, public works undertaken in the wake of the great depression in the 1930s allowed states to impound vast quantities of water.(fn5) It became apparent that, with the increased consumption and impounding of water, interstate allocations of shared surface water would have to be regulated. One of the prevalent means of accomplishing this daunting task was the creation of interstate compacts.

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States began negotiating these water compacts among themselves to set forth specific allocations and methods for settling disputes in interstate water basins. This framework ensured that downstream states would receive necessary supplies of water. The interstate compacts also typically allowed mechanisms to resolve disputes when downstream states were denied access to appropriated water.

One such agreement between Colorado, Kansas, and Nebraska was called the Republican River Compact ("Compact").(fn6) Negotiations of the Compact were concluded in December 1942 and it was ratified by the respective states in 1943. It specifically allocated water supplies of the Republican River and provided for an administrative body, the Republican River Compact Administration.(fn7) This administrative body was charged with ensuring that the provisions of the Compact would continue to be followed and it provided a mechanism to address emerging issues.

Immediately following ratification of the Compact, all seemed well. The Compact was functioning and the respective states had ample supplies of water. By the 1980s, however, tension between the states began to mount. Available water supplies in the Republican River basin were dwindling as surface water unallocated at the time the Compact was entered, began to diminish due to appropriation within the respective states. In addition, groundwater wells within the basin had grown at exponential rates, further depleting water within the basin.(fn8)

Due to inadequacies of the Compact and state laws relating to the Compact, a dispute arose between Kansas and the upstream states of Colorado and Nebraska. The dispute culminated in 1998 when Kansas filed suit in the United States Supreme Court to enforce the provisions of the Republican River Compact.(fn9) The suit was finally settled in 2003 when the Supreme Court approved the Final Settlement Stipulation.(fn10)

This Note will analyze the terms of the Final Settlement Stipulation and whether those terms adhere to the terms of the Republican River Compact. It will show that the Republican River Compact did contemplate regulation of all components of the water supply in the Republican River basin, including groundwater. In addition, it will show that the Final Settlement Stipulation was a substantial im

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provement upon the existing vague and general guidance of the original compact. It will also demonstrate that while the settlement was a needed improvement, future disputes may be on the horizon if the states fail to make good faith efforts to comply with the terms and goals of the Compact and Final Settlement Stipulation.

Section II will explain the relevant facts and circumstances leading up to the Kansas suit and eventually the final settlement. Section III.A will explain the purpose of the original Republican River Compact and its relevant provisions. Next, section III.B will explain the divergent water appropriation laws of Kansas and Nebraska that ultimately laid the ground for the ensuing dispute. Section IV of this Note will demonstrate that groundwater was considered as part of the water supply regulated by the Compact, that the settlement agreement was a significant improvement in the ability of the states to appropriately apportion water resources, and why certain weaknesses may still lead to future disputes.

II. FACTUAL BACKGROUND

A. Laying the Groundwork for a Dispute

The Republican River basin lies within the three states of Colorado, Kansas, and Nebraska. The mainstem of the Republican River begins in eastern Colorado and flows eastsoutheast through Nebraska and Kansas. Smaller tributaries that originate in northwest Kansas and southwest Nebraska also feed the basin. Implicated sources of the basin' water include surface water within the Republican River, its tributaries, and its reservoirs; water in alluvial aquifers along the river and its tributaries; and waters contained within the Ogallala Aquifer.(fn11)

The entire drainage area contained within the Republican River basin is approximately 24,900 square miles.(fn12) Approximately 7,700 square miles are within Colorado, 9,700 square miles are within Nebraska, and 7,500 square miles are within Kansas.(fn13) In addition to the Republican River and its tributaries, the basin includes a network of federal projects, including nine reservoirs and six irrigation districts operated by the Bureau of Reclamation and the Army Corps of

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Engineers.(fn14) Of the nine reservoirs located in the basin, five are located in Nebraska.(fn15)

Prior to 1943, the year the Republican River Compact was ratified, much of the Republican River basin' various water resources were undeveloped. Available surface water within the basin was not fully appropriated upon ratification of the Compact.(fn16) At the same time, groundwater wells within the Republican River basin numbered only in the hundreds.(fn17) In addition, the reservoirs that currently enable the capture and storage of a great deal of the surface waters within the basin were not completed until after 1950.(fn18) Thus, in 1949, the total irrigated acres in Nebraska and within the Republican River basin totaled only 90,352,(fn19) and there were only several hundred groundwater wells.(fn20)

Development of the basin' water supply began to change following the floods and droughts of the 1930s.(fn21) Federally funded reservoirs and irrigation projects were undertaken during the 1940s and continued throughout the 1950s. These public works enabled flood control within the basin and the ability to store large quantities of water. This development allowed retention of waters during times when available water was in excess of consumptive needs and allowed for the distribution of stored water during times when water was in short supply. Bureau of Reclamation projects in 1985 served 88,877 acres within Nebraska alone.(fn22)

In 1939, with plans to construct reservoirs and irrigation projects along the entire stretch of the Republican River basin pending, the states of Colorado, Kansas, and Nebraska entered negotiations to devise an agreement to allocate waters within the basin between the respective states. The Compact initially...