Kansas AG expects court battle with Nebraska over Republican River

February 2008

U.S. Water News Online

TOPEKA, Kan. — Kansas' new attorney general expects to file more litigation against Nebraska with the U.S. Supreme Court over the Republican River.

Attorney General Stephen Six said he believes his state's filing is six to eight months away, but he said he has concluded that it's the way to proceed.

Like other Kansas officials, Six argued that Nebraska continues to take more water from the river than it is allowed under a 65-year-old compact with Kansas and Colorado. He doubts Nebraska will comply without prodding from the high court.

"They don't seem to have a system in place in their state to solve the problem themselves, so we'll be asking the court to solve it," Six told The Associated Press.

Kansas sued Nebraska and Colorado over the river in 1998, alleging that it wasn't getting the water it was due. In 2003, the U.S. Supreme Court approved a settlement among the three states.

Nebraska Attorney General Jon Bruning said he's confident Nebraska has plans in place to comply "without the need for the drastic actions suggested by Kansas."

Kansas' demands would force Nebraska to shut down wells for more than 40 percent of the irrigated acres in its part of the river basin. Kansas officials haven't said exactly how much they want Nebraska to pay for using too much water, but they've conceded the figure is in the tens of millions of dollars.

"I look forward to meeting Attorney General Six and working with him to resolve these issues," Bruning said.

Kansas alleges that Nebraska's water use exceeded what was allowed for 2005 and 2006 by about 27 billion gallons -- or enough to supply a city of 100,000 for 10 years.

In December, Six's predecessor, Paul Morrison, sent Nebraska officials letters demanding that their state cut its use of Republican River water and pay Kansas for taking too much, or face new litigation. Morrison was forced to resign because of a sex scandal, and Six has taken the office.

Six said that under the compact and the Supreme Court's 2003 order, Kansas still must take steps through the compact's administrative commission to resolve the dispute before filing its litigation with the court.

Asked whether Nebraska could act to head off the litigation, Six said: "Nebraska simply hasn't complied, and they keep talking about how they're going to do things in the future that so far have not got Kansas the water it deserves."

North and south forks of the Republican flow from northeast Colorado into Nebraska, converging just over the border. The river then flows through southern Nebraska into north-central Kansas and Milford Lake northwest of Junction City. Its basin covers almost 25,000 square miles.

In 1943, the three states signed a compact allocating 49 percent of the river's water to Nebraska, 40 percent to Kansas and 11 percent to Colorado. In 1998, Kansas alleged its neighbor to the north violated the compact by allowing thousands of wells to tap the river and its tributaries.

Six said that even after the settlement of Kansas' lawsuit, "Nebraska continued to drill wells and has set up a system that I don't think they're able to provide Kansas with the 40 percent of the water we're entitled to."

"They've made a lot of statements about things they're going to do, but really we feel like proceeding with a filing is a way to go," he said.