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Arbitration Analysis from Water Claim

The arbitrator made 12 recommendations based on the 53 conclusions and 159 findings that he reached. The ruling leaves many important issues unresolved.

The arbitrator ruled that Nebraska cannot shift all of the evaporation losses to Kansas as it has tried to do. As a result, the Kansas estimates on how much Nebraska has been over are more correct than Nebraska's. The arbitrator rejected Nebraska's suggested solution to one of the the demonstrated errors in the Model. However, he did recommend that the technical committee carefully review the problem and suggest a correction. He rejected most of the Nebraska suggestions regarding measurement points with the exception that he did accept the idea that the measurement point on the North Fork of the Republican be moved to the Nebraska/Colorado border. That will make it more difficult for Nebraska to comply in the future as Nebraska will have to stop the water Colorado dumps at the State line from disappearing before it reaches the next stream gage.

The ruling rejected the dollar amounts suggested by all States as being unsupported. So the ruling suggests a nominal award from Nebraska to Kansas of $10,000 (ten thousand dollars) until Kansas "proves" an actual amount in damages.

The ruling rejects the Kansas suggestion that all wells within 2.5 miles of either side of the stream be shut off as being more than necessary due to the reduced pumping Nebraska has already imposed on irrigation. However, he rejects Nebraska's position that the current Integrated Management Plans are adequate and recommends that additional reductions in allocations be made and that Nebraska should secure long term access to surface water rights. No specifics are given. The ruling says that Kansas has the right to seek injunctive relief should Nebraska fail to stay within the allocations and that Nebraska may be sanctioned such that it is incentivized to comply. However, no details are provided as to what that relief might be or what the sanctions might be. Additionally, the arbitrator has recommended that no River Master be appointed.

The arbitrator left a lot of things open for others to decide. He has deferred many of the specifics. No dollar amounts are given. He agrees that there are technical problems found in the Model but leaves it to the States to resolve. He has rejected both parties proposed solutions but has not said what the solution should be. He does suggest that the IMPs are ineffective in keeping Nebraska in compliance because of the time it takes for the IMPs to have any effect. He says Nebraska needs to find better ways to stay in compliance but leaves it up to the State as to how to do that. He says that if Nebraska fails that Kansas can force compliance but also leaves it open as to what it can specifically do. In the short term there are few financial costs. However, Kansas is given the opportunity to prove actual costs which the arbitrator says may result in millions of dollars.

Link to full ruling:

http://www.waterclaim.org/legal/finalarbitration.pdf

Republican River Water Conservation District

to Hold Regular Quarterly Board Meeting

The Board of Directors of the Republican River Water Conservation District will be holding its regular quarterly meeting in Haxtun, Colorado. The date, time, and location of the meeting and a summary of the agenda for the meeting are provided below.

Regular Meeting of the RRWCD Board

Date: Thursday, July 9, 2009

Time: 10AM to 4:00PM

Agenda: Approve minutes of previous meetings; approve quarterly financials; review the draft 2008 audit report; receive reports on various recent meetings and programs; status of Compact Compliance Pipeline approval by the Republican River Compact Administration; and various Board Action Items, including action on the contract with Habitat for Wildlife LLC; consider an option to extend the lease of the Soehner Cattle Co. water rights, as well as other items.

Public Comment at 1:00PM

If necessary, the RRWCD Board of Directors will hold an executive session to develop a strategy for negotiations for the purchase, acquisition, or lease of water rights, easements, and property and to receive advice on legal questions.

Location: Haxtun Community Center

125 East Wilson

Haxtun, Colorado

Water being released from Bonny

Written by Tony Rayl
Friday, 26 June 2009
A release of water from Bonny Reservoir that began June 17 continued until 5 p.m. on Sunday, June 28. Healthy rainfall in the area led to State Engineer Dick Wolfe to order a maximum release of inflow water. According to information from Wolfe, the reason for requesting this final level is to recognize there will be a continued net increase in reservoir storage once the release is stopped, for at least the next several days. It is estimated that the net increase in storage will be approximately 15 to 20 acre feet per day once the release is stopped. During the release, outflow far exceeded inflow, meaning the reservoir continued to drop during the release. The released water flowed down the South Fork of the Republican River, through northwest Kansas and into Nebraska, where the water flow is measured by a gauge in Benkelman. Kansas has been making the case that Colorado has not been meeting its sub-basin requirement along the South Fork sub-basin. It is one of the sticking points in Colorado seeking approval for its proposed compact compliance pipeline from the Republican River Compact Administration. Kansas argues Colorado cannot make up for its shortage on the South Fork by sending it into the North Fork via the pipeline. Plus, Nebraska is arguing it does not want to have to convey that water past its users and reservoirs into Kansas, when it should arrive on the South Fork. The last special meeting of the RRCA, which is comprised of representatives from all three states, was in May. That meeting was continued in hopes of the three states reaching a settlement so the pipeline would be approved. However, it never has been reconvened, and the annual RRCA meeting is August 11-12 in Lincoln, Nebraska.

RRWCD closes on pipeline water

Written by Tony Rayl
Friday, 26 June 2009
The Republican River Water Conservation District Water Activity Enterprise completed the purchase of ground water rights for the Compact Compliance Pipeline on Friday, June 19, using funds provided from the Colorado Water Conservation Board's construction loan fund. The ground water rights will be leased back to the sellers until the water is needed for delivery through the pipeline. Although the Republican River Compact Administration has not yet approved a plan for augmentation and accounting procedures for the pipeline project, the RRWCD Board of Directors concluded that completing the purchase was prudent in light of the State of Colorado's current budget situation. The State of Colorado is currently in negotiations with the states of Kansas and Nebraska on terms and conditions for approval of deliveries of water to the North Fork of the Republican River to assist the State of Colorado with compact compliance. The RRWCD Board expects Colorado to propose a revised resolution to approve terms and conditions for the pipeline project at the annual RRCA meeting in Lincoln, Nebraska, on August 11-12. If the Kansas and Nebraska members do not approve the revised resolution, the State of Colorado is expected to seek arbitration under the provisions of the Final Settlement Stipulation between the states. Even with the delay in obtaining RRCA approval, construction of the pipeline could begin in 2010 with deliveries beginning in 2011.

RRWCD did close on the Cure water on Friday June 19, 2009. More information to follow soon.

Pipeline talks continue; RRWCD to close on groundwater

Written by Tony Rayl
Thursday, 18 June 2009
The closing on the $49.1 million purchase of the groundwater rights by the Republican River Water Conservation District from the Cure family is tentatively set for the end of this week. The groundwater, representing about 50 wells, will be used for the proposed compact compliance pipeline, if Colorado can get approval from Kansas and Nebraska through the Republican River Compact Administration (RRCA). Meanwhile, State Engineer Dick Wolfe has stated the continuation of the Special RRCA Meeting that began in May has not been scheduled yet as the three states are continuing settlement negotiations in regards to Colorado's proposed compact compliance pipeline. Wolfe, in an e-mail to the Pioneer, reported the hope is to set the date soon. However, he added Colorado did not want to set the continuation until the state knows it has a deal with Nebraska and Kansas, or that it is determined the states definitely are at an impasse. At that point, a final vote would be needed to initiate the arbitration process. Last month the Republican River Water Conservation District Board of Directors voted to move forward with the $49.1 million purchase of the groundwater rights for the pipeline. The board had previously held the stance it would not move forward until the RRCA approved the pipeline. To date, Kansas and Nebraska have withheld approval until its concerns with the pipeline plan are satisfactorily addressed. However, concerns have arisen that the $60 million loan from the Colorado Water Conservation Board could be taken away in the near future as the State of Colorado grapples with a severe budgetary crisis. The loan initially was supposed to be available until some time in 2010. Those concerns led to the RRWCD board changing its stance and moving forward with the groundwater purchase. Kansas' intentions In response to questions raised in the Pioneer recently, Wolfe wrote that Kansas has made its intentions and demands very clear, and that the specific details were made public some time ago. He stated Kansas wants Colorado and Nebraska to comply with the compact. In the case of the South Fork sub-basin issue, Wolfe stated Kansas wants water — not money. Kansas wants its allocation protected on the South Fork and does not want delivery on the North Fork. Wolfe added that Nebraska also does not want Kansas' delivery on the North Fork, in regards to the South Fork, because it would have to convey it downstream past its users and reservoirs. Plus, Wolfe noted, delivery on the North Fork of what should be going down the South Fork, does not provide water on the South Fork upstream of Benkelman, Nebraska, in an area where Kansas says surface and well users will be impacted. That portion of the South Fork through southwest Kansas is considered upstream of Kansas, and any use by Kansas residents is supposed to be credited to Colorado's compliance efforts. The water from the South Fork still goes into Nebraska and travels downstream before dropping back into Kansas, where it is factored into Kansas receiving its fair share of water as outlined in the Republican River Compact. David Robbins, an attorney for the RRWCD, has made the case in past meetings that Colorado's responsibility in the compact is to deliver water to Nebraska, not Kansas. Photo's of Tree Removal on the North Fork of the Republican

RRWCD moves on $49.1 million water purchase


Thursday, 28 May 2009
On Monday, May 18, the Republican River Water Conservation District Board of Directors voted to authorize closing on the $49.1 million purchase and sale of the groundwater rights for the Republican River Compact Compliance Pipeline. The decision came even though the Republican River Compact Administration has not yet approved the augmentation plan and accounting procedures for the pipeline project. After questioning Deputy State Engineer Mike Sullivan at length and taking comments from the public, the RRWCD Board of Directors voted to authorize the closing because of concern that the $60 million loan funds from the Colorado Water Conservation Board may not be available in the future due to the state's current budget situation. The board recognized that Colorado is exceeding its statewide Compact allocations and that the pipeline project is needed to avoid an action by Nebraska or Kansas for an injunction against Colorado to halt well pumping in the district until Colorado is in compliance with its compact allocations. The RRWCD Board also recognized that Kansas believes that Colorado is impairing Kansas' ability to use its South Fork sub-basin allocation within the South Fork sub-basin. The RRWCD Board has requested assurances from the State of Colorado that if the board goes forward with the pipeline project, Colorado will drain Bonny Reservoir or take other actions equivalent to draining Bonny Reservoir if Kansas is correct regarding its interpretation of the Final Settlement Stipulation between the states. Although the State of Colorado has not provided the assurances sought by the board, the board concluded that the only feasible way to comply with Kansas' view of the sub-basin non-impairment requirement in the South Fork sub-basin is to drain Bonny Reservoir. The State of Colorado is continuing negotiations with Nebraska and Kansas in an effort to get the Republican River Compact Administration's approval of the augmentation plan and accounting procedures for the pipeline project. If the negotiations are not successful, the State of Colorado will pursue the dispute resolution process established in the Final Settlement Stipulation, which includes non-binding arbitration of disputes.

Republican River Basin: Special RRWCD board meeting recap

May 22, 2009

Here’s a recap of the special board meeting held on Monday for the Republican River Water Conservation District, from Tony Rayl writing for the Yuma Pioneer. From the article:

Mike Sullivan, who was promoted to deputy state engineer last October, was in attendance at the special meeting, held at the Church of the Nazarene. He told the board the state has revamped a settlement agreement that is hopefully agreeable to all three states. Colorado’s leaders are having a private meeting with counterparts from Kansas and Nebraska today, May 21. He said Colorado will see if the other two states will accept what’s being offered. It possibly will be decided then when to continue the Republican River Compact Administration meeting that was continued from April 28, when Kansas and Nebraska representatives both stated they would continue to vote against the compact compliance pipeline due to issues the states cannot agree on. Sullivan said he feels good about a settlement eventually being reached, because Kansas and Nebraska cannot be unreasonable in their opposition to Colorado’s plans for coming into compliance with the Republican River Compact. A sticking point in Kansas approving the pipeline is the claim Colorado does not pass the “sub-basin” test on the South Fork of the Republican, and that a pipeline sending water into the North Fork will not satisfy the South Fork issue…

The RRWCD has taken the stance it will not move forward with the pipeline if the South Fork still remains a problem. Plus, there is the fact irrigated farmers along the South Fork are paying the same assessment fee as everyone else to pay for the pipeline, but could end up having their wells curtailed because of the sub-basin issue. If the wells in the South Fork sub-basin are shut down, which account for approximately one-half of Colorado’s wells in the Republican River Basin, that means the remaining well users will have to take on an even greater burden of paying for the pipeline project…

District engineer Jim Slattery said Monday draining Bonny is the only way to come into compliance on the South Fork — if Kansas is right in its assertion that the South Fork shortfall cannot be made up by the North Fork pipeline. Even, it would take years before Colorado would be in compliance on the South Fork. Sullivan said draining Bonny would help with the sub-basin test, but not on overall compliance. Board member Jack Dowell of Yuma told Sullivan that the state could recoup the revenue it loses from Bonny from other sources in the state, but that the farmers and communities in the region would be left high and dry with no chance to recoup losses if the wells are shut down so Bonny can remain open. Sullivan noted loans and grants have been used for work done at Bonny, and the state needs to make sure it does not hinder future efforts to receive federal funds before closing down Bonny…

Board President Dennis Coryell expressed frustrations that the RRWCD’s pipeline project has been delayed by nearly one year now because of the South Fork issue. Meanwhile, all irrigators are paying the new $14.50 per acre assessment fee for a pipeline that is not being built. He also noted the people in the basin are not getting much information from the state regarding the pipeline negotiations. He urged the state be as transparent as possible in the process so the locals can be informed…

Other discussion included options besides draining Bonny Reservoir. Sullivan said the only other is the “nuclear” option — shutting down all wells. (It has been shown even doing that would not get Colorado into compliance.) Reopening the compact also was brought up. Sullivan said doing so would mean it would have to be open to all parties, meaning even more entities could step in asking for a portion of the water. RRWCD legal counsel David Robbins said Colorado getting more water out of a renegotiated compact would mean convincing Kansas and Nebraska to give up water. He said Colorado would run the fundamental risk of ending up with even less water because the upstream states already are using all they are entitled to, and could very well seek more water out of a new compact…

Coryell noted that in an ag-driven economy, issues at Bonny Reservoir do not speak loudly. “It is not going to be a pretty thing if the South Fork wells are curtailed in order to keep open a facility that has seen its better days,” he said.

Bonny Reservoir: Test release of 900 acre-feet

May 22, 2009

From the Yuma Pioneer (Tony Rayl):

[State Engineer Dick] Wolfe ordered the release on May 4, and then ordered it stopped on May 11. About 900 acre feet was released during that time into the South Fork of the Republican River. The board was told at its regular meeting in April that there was an extra 3,992 acre feet of storage in Bonny. Therefore, many were left scratching their heads last week when the release was stopped while there was 3,000 acre feet left to drain. “We wanted to see what kind of response we got out of that (initial release),” Wolfe said. He explained the state did not want to release all the extra water only to find out it was not reaching the gage at Benkelman. It turns out that it was. In fact, approximately 50 percent of the released water was reaching Benkleman, which Wolfe said was very good…

Wolfe said it takes about two weeks to fully measure the impact the release is having a the gage. He said his office will meet with the Bureau of Reclamation on June 3 to evaluate the May 4-11 release and then decide when and if to release more of the “out of priority” water in Bonny…

He said the state could, conceivably, be in compliance with the Republican River Compact if the water released from Bonny keeps getting to Benkelman. However, he said there are a lot of factors to consider, noting that if Colorado experiences a wet year, the extra storage in Bonny would not be needed, and a lot of people would be questioning why the water was released. As for the RRWCD’s call to drain Bonny, Wolfe said “There are a lot of issues on the table to decide what to do long-term with Bonny.”

Republican River Basin: Nebraska and Kansas reject Colorado’s proposed compliance pipeline

May 8, 2009

Kansas and Nebraska formally rejected Colorado’s plans for a compact compliance pipeline, Tuesday morning, but it appears there is hope the states are getting closer to resolving their various issues. That is due to the fact that, instead of Colorado immediately calling for arbitration after Tuesday’s vote, State Engineer Dick Wolfe called for a continuation of the special meeting to a yet-determined date in two to three weeks. Kansas and Nebraska each agreed to the continuation. Tuesday’s telephone gathering was an official meeting of the Republican River Compact Administration (RRCA). Wolfe is Colorado’s commissioner on the RRCA. His counterparts in Kansas and Nebraska, David Barfield and Brian Dunningan, respectively, are the other commissioners…

In the end, it came down to the three state engineers. Dunningan of Nebraska said the state supports Colorado’s efforts to receive approval. However, Nebraska still has issues with protecting the surface water users along the Haigler Canal, and limiting the volume of water delivered by the pipeline as Nebraska then is responsible for sending on the water to Kansas, and there will be evaporation in the process. Barfield recognized Colorado’s “significant” efforts to get into compliance. However, significant concerns remain for Kansas, particularly in regards to sub-basin compliance along the South Fork of the Republican River. “For this reason, Kansas will be voting ‘No’,” Barfield said. He added, though, that Kansas believes the states can continue to find a resolution for the pipeline plan…

Wolfe said Colorado recognizes there are issues still not resolved, but Colorado was ready to entertain a motion to approve the pipeline. Barfield approved the motion, then he and Dunningan voted against, while Wolfe voted in favor. Wolfe then requested the meeting be continued for two to three weeks, with the states continuing negotiations in the interim. Kansas and Nebraska agreed to the continuation. The specific date will be announced at a later date, after the parties involved can coordinate when all three will be available.

RRWCD has a launched it's redesigned website. Information includes budgets, audits, minutes and press releases.

Click the logo to visit site

Republican River compliance pipeline: Project may be headed to binding arbitration

April 18, 2009

No significant progress, in regards to getting Kansas and Nebraska to approve the [compliance pipeline] project, has been made in the past few months, it was reported during the Republican River Water Conservation District Board of Directors regular quarterly meeting, last Thursday, April 9, in Yuma. A teleconference with Kansas and Nebraska is set for Tuesday, April 28, for a special RRCA meeting. Colorado will ask for approval for the proposed compact compliance pipeline. If Kansas and Nebraska reject it, as expected, Colorado will move to the arbitration stage.

If not approved, the next step would be arbitration. The system is set up so it is “non-binding” arbitration, meaning the states do not have to adhere to the ruling. It is a step taken, though, in an effort to resolve the issue without going to the U.S. Supreme Court. Colorado, though, is willing to take the pipeline to binding arbitration, meaning the arbitrator’s decision carries weight. “We have offered binding arbitration but Kansas has rejected it, at least initially,” [Alexandra Davis, the assistant director for water for the Department of Natural Resources] said. “We were willing to go to binding arbitration.”[...]

The Republican River Water Conservation District continues to lay the groundwork for the pipeline, while waiting for RRCA approval. Engineer Jim Slattery told the board last Thursday that work continues on easements, an application for a permit from the Corps of Engineers has been submitted, and the district also is dealing with a minor issue with the Colorado Ground Water Commission in regards to “co-mingling” wells. Slattery told the board he has been told bidding among contractors is still competitive due to a slowdown in projects, but it might not last much longer.

The district itself is not moving too far ahead until issues are resolved between the three states. The RRWCD is taking the stance that it developed the pipeline project on the assumption that delivering water to the North Fork would bring Colorado into compliance with the pipeline. However, Kansas asserts Colorado is not in compliance in the South Fork sub-basin, and the pipeline to the North Fork will not address that. Therefore, the district definitely wants that issue resolved, and approval from the RRCA, before building the pipeline. The RRWCD also has requested assurances from state officials that Colroado will drain Bonny Reservoir, or take other actions equivalent to draining Bonny, if Kansas is found to be correct in its interpretation of the South Fork issue.

Also, the Sandhills Groundwater Management District, where the wells for the pipeline are located, has stated it will not hold a hearing on the RRWCD’s request to export water from the management district until the RRCA has approved the augmentation plan.

A $60,000 million, 2-percent interest loan from the Colorado Water Conservation Board was approved by the Colorado Legislature last year, to the RRWCD for the pipeline. The RRWCD does not want to take the risk of borrowing that money until it is certain the pipeline is a go for all parties. Technically, the RRWCD has two years from the date of the loan contract to borrow and complete the project, according to legal representation. The CWCB staff has told the RRWCD it could obtain further time if necessary. However, in light of the budget crisis, the district would like to get going before the end of the year.

More coverage of the meeting from the Yuma Pioneer (Tony Rayl):

The water level at Bonny Reservoir continues to be an issue with the Republican River Water Conservation District. Dave Keeler, the state’s water commissioner for the Republican River Basin, gave a Bonny update to the RRWCD Board during its regular quarterly meeting, last Thursday in Yuma. He said measurements show that currently there is an extra 3,992 acre feet of storage in Bonny, which is considered “out of priority” water. As to when that water will be released, Keeler referred to State Engineer Dick Wolfe. Among the main considerations in releasing the water is the ability to maximize the amount released getting to the gage in Benkleman, Nebraska. It sounds like there will not be a release until the fall. However, there is a live stream flow in the South Fork of the Republican River reaching the Benkelman gage, and there is little irrigation right now. Board Member Eugene Bauerle said the district should consider asking the state to make a release now, since conditions are good for the water getting to the gage.

More Coyote Gulch coverage here and here.

Posted by coyotegulch

Filed in Colorado Water, Ogallala Aquifer, Republican River Basin

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Ogallala (High Plains) Aquifer has dropped 9% in 60 years

April 14, 2009

From the Houston Chronicle: “The U.S. Geological Survey says in a report issued Tuesday that by 2007, the aquifer has dropped a foot on average in Nebraska since the early 1950s…The aquifer supplies about 30 percent of the nation’s groundwater used for irrigation. And the USGS says the aquifer provides drinking water to more than 80 percent of the people who live above it.”

From the McCook Daily Gazette:

…it’s easy to forget just how big, and important, the aquifer is, and to take it for granted. Covering 174,000 square miles under Nebraska, Kansas, Colorado, New Mexico, Oklahoma, South Dakota, Texas and Wyoming, The High Plains Aquifer is the primary source of drinking water for most of us and provides the life-giving liquid that makes one fourth of the United States agricultural production possible. Although extensive irrigation has caused the aquifer to decline, some of the same technology that made irrigation possible, such as the highly efficient systems produced by Valmont right here in McCook, is making the most efficient use of the valuable resource of water.

A complete copy of the report is available at http://pubs.usgs.gov/sir/2009/5019/ and an abbreviated version is at http://pubs.usgs.gov/fs/2009/3005/

More coverage from the Omaha World-Herald:

The total amount of drainable water in the aquifer in 2007 was about 2.9 billion acre-feet, a decline of about 270 million acre-feet since before development, the U.S. Geological Survey said in a report Tuesday…The High Plains aquifer, also popularly known as the Ogallala Aquifer, is a nationally important water resource that likes under some 174,000 square miles in parts of eight western states—Colorado, Kansas, Nebraska, New Mexico, Oklahoma, South Dakota, Texas and Wyoming.

Pipeline talks reach an impasse

Written by Tony Rayl

Thursday, 08 January 2009

A crowd of about 60 packed the meeting room at the Yuma Ambulance Service building for a report from state leaders on the negotiations for the proposed compact compliance pipeline, Tuesday morning. (Pioneer)

The veil of secrecy shrouding Colorado's negotiations with Kansas and Nebraska on the proposed compact compliance pipeline has been lifted. Revealed is the fact the three states remain at odds on three issues.
Also made clear is that Monday, January 26, is an important day.
Leaders from all three states will meet that day, via telephone, with Colorado asking for a decision on the proposed pipeline by the Republican River Compact Administration. If the answer is “yes,” then it will be time to get busy on the pipeline. However, Colorado's leaders fully expect a “No” answer. In that case, Colorado then will invoke a call for “fast track arbitration” that must be completed in six months. If the arbitration works out in Colorado's favor, but Kansas and Nebraska still balk at approving the pipeline project (the arbitration is non-binding), then the state will take the issue to the United States Supreme Court.
There is no guarantee the Supreme Court would hear the case, and even if it did, it could be quite a while before it appears on the court's docket.
That is the situation as it was laid out by Alex Davis of the Colorado Department of Natural Resources, State Engineer Dick Wolf, and Peter Ampe with the Colorado Attorney General's Office, during a public meeting held Tuesday morning in the Yuma Ambulance Service building. Approximately 60 people attended the meeting, which was announced less than one week earlier.
Colorado, Kansas and Nebraska have been discussing the pipeline project since early last year. Davis said Kansas insisted the conversations remain confidential so the states could talk openly and frankly, exploring all ideas and options without worry of public backlash.
However, Davis said it became apparent to the Colorado delegation in recent weeks that it was time to go public so it could get some feedback. Kansas and Nebraska agreed one week ago to lift the confidentiality agreement.
4 issues, 3 insurmountable
Davis said four major issues have come to the forefront during the discussions.
One is rather easy to resolve. Kansas stated it did not want Colorado to use the pipeline — which would be located at the east end of Yuma County and discharge directly into the North Fork of the Republican River at the Colorado-Nebraska state line — to, for example, pump 40,000 acre feet into the river over the course of four months and then state they are in compact compliance for five years.
That was never the intention of the Republican River Water Conservation District, the entity doing the pipeline, which plans on pumping the amount needed each year to meet Colorado's obligations to the Republican River Compact. Therefore, Colorado is going to come up with some kind of agreement on pipeline usage that satisfies Kansas, and also gives Colorado some leeway for overage credit if it pumps a bit too much during a wet year.No big deal.
However, there are three other issues that Davis said are “insurmountable.”
One has to do with a credit involving water above Swanson Reservoir in Nebraska. The states could not come to an agreement on how to handle that credit.
Another issue is Nebraska wanting assurances the Haigler Canal would not be shorted. Davis said research showed it actually is a Colorado water right that is administered in Nebraska. She said Colorado offered to make sure water is in the canal, only if it runs dry because of reasons beyond the Nebraska users' control. Davis said Colorado was not going to supply water if the canal went low because the Nebraska users were not utilizing it correctly. The offer was rebuffed.
The third insurmountable issue is the one most are aware of — Kansas' argument that Colorado needs to meet compliance in each sub-basin, the North Fork, South Fork and Arikaree River, rather than basinwide compliance. In other words, Kansas has taken the stance Colorado cannot use the pipeline to the North Fork to make up for shortages on the South Fork and Arikaree. Colorado's interpretation of the final settlement reached between the three states early this decade, is that it allows Colorado to meet compliance basinwide, not in each sub-basin.
Davis said Colorado wants to let the courts decide that issue, but Kansas has insisted on tying its approval of the pipeline to Colorado agreeing to the sub-basin test.
Davis said Colorado has to litigate that issue, so it became apparent recently that the state was not going to be able to cut a deal for the pipeline.
An advisory committee, representing local entities involved in the compact issue, told the Colorado delegation that the three “insurmountable” issues really have nothing to do with the pipeline and augmentation plans, but rather with problems the states have with the computer model used for compact compliance and the accounting methods used.
However, Colorado cannot push the pipeline issue to arbitration until the Republican River Compact Administration — the RRCA, whose purpose is to administer the compact, is comprised of one member each from the states of Colorado, Kansas and Nebraska — formally rejects the proposal.
Thus, Colorado's plan to ask for formal acceptance on January 26, after which, if it is denied, the state will immediately begin the fast track arbitration process.
Wells safe during process
State Engineer Dick Wolfe stressed during Tuesday morning's presentation that the state will not take any curtailment action on irrigation wells while working out the pipeline presentation.
In fact, he and Davis both said Colorado will look at all possible options to get into compact compliance without mandating the forced shutdown of wells. Wolfe said the state is looking into more conservation measures, CREP and EQIP continue to pay for wells taken out of production, measurement rules are going into effect this year, and the fate of Bonny Reservoir is still on the table.
Harris Sherman, the executive director of the Department of Natural Resources, is formulating a letter that will go out to irrigators assuring them the state will do all it can before ever resorting to well curtailment.
The mention of Bonny opened the door for more discussion on that issue.
Funding for pipeline
Delays on the RRCA approving the pipeline has left the RRWCD hanging for the time being on the estimated $71 million pipeline project — $50 million for well purchases and $21 million to construct the approximately 12-mile pipeline.
RRWCD representatives said Tuesday morning they are maintaining close communications with the sellers, whose wells will be used for the pipeline, to ensure the purchase will go through as planned when everything finally is in place.
The RRWCD also has a $60 million loan from the Colorado Water Conservation Board for the project. The loan was approved by the Colorado Legislature last spring. RRWCD leaders were going to confirm it, but it is believed the loan is on the table for one year and that the RRWCD could ask for an extension of up to two years. However, assessment fees increasing from $5.50 per irrigated acre to $14.50 — to pay for the pipeline debt over 20 years — will be paid by irrigators on this year's tax bill, even though the pipeline is in a holding pattern for the moment.

Arbitrators Preliminary Ruling

The Arbitrator on the Republican River dispute between Kansas and Nebraska and Colorado has issued a preliminary set of decisions.

Summary of the rulings provided by Water Claim:

Decision 1 permits Nebraska to challenge one of the major flaws in the Model.
Decision 2 will increase the amount of water Nebraska will have to account for.
Decision 3 is good for Nebraska and Colorado short term but will have a major negative effect for Nebraska and Colorado in the future and will make surface water purchases less helpful. Evaporation off of Harlan is about 40,000 acre feet a year. The arbitrator says that when Nebraska uses no surface water that Kansas is charged all evaporative losses. But the arbitrator feels that is not proper and should be changed so that Nebraska is charged some evaporation even if it doesn’t use surface water. By extension this will apply to Bonny Reservoir in Colorado as well.
Decision 4 will in theory reduce the damages Nebraska owes to Kansas as the damages will be limited to what Kansas actually is hurt by not how much Nebraska benefited.
Decision 5 means that the Court can consider the Kansas proposed remedy.
Decision 6 means that damages will be decided after more information is collected but the Kansas suggested method will not be used.\

See full copy of preliminary decision Click here

Arbitrator rules for Nebraska on key compact issues

Written by By Russ Pankonin, Imperial Republican

Wednesday, 31 December 2008

    Talk about a Christmas gift!
    That’s what irrigators in the Republican River Basin got with the preliminary decisions from the arbitrator on compact disputes between Nebraska and Kansas.
    In preliminary rulings by arbitrator Karl J. Dreher, Nebraska and its irrigators got two key rulings in their favor.
    The two rulings addressed damages due Kansas by Nebraska’s non-compliance with the compact in 2005 and 2006, and the accounting methods used to determine compliance.
    Attorney General Jon Bruning, who released the findings late Monday, said the ruling on damages due Kansas represents the most important decision by the arbitrator.
    Kansas wanted damages based on the gain Nebraska got from it alleged overuse of water. Estimates as high as $75 million has been tossed out by Kansas.
    What Dreher ruled is that Kansas is limited only to actual damages it suffered.
    He said the 2003 compact settlement, like the 1943 compact itself, is a contract between the two states. As a result, damage awards are limited to actual damage suffered by Kansas.
    Bruning said Kansas was putting forth a theory of unjust enrichment to Nebraska by having water that, in Kansas’ opinion, should have been sent to them.
    “Our contention the whole time is that Kansas had enough water to grow a crop,” Bruning said.
    Any excess water they didn’t use would have just flowed downstream to New Orleans, Bruning said.
    Bruning said actual damages versus unjust enrichment is what the state believes to be fair.
    “We’ve asked Kansas for their actual damages for some time and they’ve never responded,” Bruning said. “The reason for that is because they’re going to be significantly smaller in terms of dollars than unjust enrichment would have been.”
    To receive damages for water-short years 2006 and the preceding year of 2005, Kansas will have to show actual damages, the arbitrator said.
    Dave Cookson, chief deputy attorney general, said the damages the state may face for those two years will be much less.
    Estimates in the $5-10 million range have been previously discussed.
    Cookson said he hopes the decisions will bring Kansas back to the discussion table and “we can work something out.”

Arbitration is non-binding
    While this can be considered a victory for the state and its irrigators in the Republican Basin, it still remains just one win in a long battle.
    The compact settlement specified that if Nebraska, Kansas or Colorado had disputes, they must first bring them before the compact administration.
    If the disputes are not resolved to all states’ satisfaction, any state can call for non-binding arbitration.
    Kansas filed the official notice for arbitration on October, 2008. Nebraska then added issues that it felt needed to be addressed by arbitration.
    The arbitrator’s decision is non-binding upon the three states, which means any state can file suit with the U.S. Supreme Court over the disputes.
    Cookson didn’t speculate whether Kansas would seek further remedy in the Supreme Court.
    While the arbitration is non-binding, Cookson felt the rulings in Nebraska’s favor should carry some significant weight if Kansas decides to pursue the matter at a higher level.
    However, he said there’s still no way to tell how a special master for the Supreme Court would rule.

Ruling on accounting dispute
    Bruning said Dreher’s ruling allowing the compact accounting methods to be corrected if errors are found is another key win for the state.
    The Department of Natural Resources has indicated they have found flaws in the computer groundwater models used to determine compliance.
    WaterClaim founder Steve Smith of Imperial has long contended the models used by the states to be inaccurate and that changes need to be made.
    Dreher said the compact can’t be adequately enforced without accurate accounting. As a result, he said any errors found are open for resolution by the compact members.
    Dreher found in favor of both states on several issues, clarifying such things as accounting for reservoir evaporation and proposed remedies.
    Two of the disputed issues dealt with evaporation in Harlan County Dam and non-federal dams below Harlan.
    Dreher said that even when Nebraska Bostwick Irrigation District sells their water to the state instead of taking delivery, the state must share in the evaporation loss.
    He also said the evaporation loss in dams below Harlan must be shared by both states in figuring compliance.
    In a letter from Kansas in December, 2007, they issued a list of demands that Nebraska comply to. These included shutting down all irrigation wells within 2.5 miles of any stream or tributary as well as wells drilled after 2000.
    While Dreher said these proposed remedies by Kansas can be part of the arbitration process, he said Kansas can’t mandate those remedies.
    He said further hearings on Nebraska’s alleged compact violations and proposed methods for future compliance could be held.
    After those hearings, only then would the arbitrator recommend actions necessary for future compliance.
    A full PDF version of the preliminary decisions by Dreher is available at http://www.imperialrepublican.com.

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