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So far, Nebraska not countering Kansas river demand

BY ART HOVEY / Lincoln Journal Star

If you’re getting ready to buy your first house, you might make an initial offer of $72,000, based on the absence of a third bedroom and garage.

Then you’d sit back and wait for the counteroffer.

The rules of the game are a little harder to follow in the world of water, where Kansas demanded Tuesday that Nebraska pay $72 million in compensation for violating the terms of the Republican River Compact.

On Thursday, there was no indication of when — or if — the Nebraska Department of Natural Resources would make a counteroffer to resolve a situation in which Kansas claims Nebraska used more than its share of water in 2005 and 2006.

“I would just refer you to the attorney general’s office at this particular time,” said Brian Dunnigan, acting Nebraska Natural Resources director.

Late Tuesday, Nebraska Attorney General Jon Bruning didn’t sound especially impressed with the Kansas number.

“While we remain committed to working with Kansas to resolve the compact issues,” he said in a prepared statement, “we’re disappointed to receive a damage claim that has no basis in reality.”

Speaking for Bruning Thursday, Leah Bucco-White had nothing to add about bargaining possibilities or about the potential last-ditch significance of a May 16 meeting of the Republican River Compact Commission in Lincoln.

“On both of those, we have no additional information to share at this time,” Bucco-White said.

David Barfield, chief engineer for Kansas’ Division of Water Resources, was slightly more forthcoming.

He said Kansas was “pretty well committed not to go to non-binding arbitration” before the Lincoln session.

Barfield also said a counteroffer from Nebraska “isn’t our expectation, necessarily.”

A tight-lipped, close-to-the-vest posture from negotiators on the Nebraska side of the border is nothing new under circumstances in which the river dispute could easily end up in court.

But that isn’t stopping others with a vested interest in how the state will react to the damages claim from trying to get a grip on what happens next.

Dan Smith, general manager of the Middle Republican Natural Resources District at Curtis, doubts Nebraska would offer any figure of its own at least until after the commission meeting in Lincoln and perhaps not until matters go to the next step of non-binding arbitration.

“Somewhere through the process,” said Smith, “I’m sure Nebraska will make a counteroffer of some sort.”

He said he would be surprised if “everybody goes home happy.”

It’s much more likely the wrangling between the two states will go on beyond that.

“I expect Kansas to go forward to arbitration,” he said.

Meanwhile, Dave Aiken, a water law specialist at the University of Nebraska-Lincoln, and Ray Supalla, an agricultural economist at UNL, saw significance in the way Kansas calculated its $72 million impact assessment.

Aiken said the figure was based on what he described as “enrichment theory.” In other words, Kansas isn’t saying what damage its farmers may have incurred from reduced ability to irrigate from the river. Their approach is to estimate the economic gain from comparatively more irrigation in Nebraska.

He interprets the Kansas claim to mean “we want water. We don’t want money, we want water.”

Supalla said Kansas may have chosen the enrichment tactic to forestall a situation in which Nebraska might decide the benefits of using water are more than Kansas damage estimates.

If you’re Kansas, he said, “You don’t want an incentive to keep violating it. So certainly the enrichment approach is an approach that makes sense.”

But that way of resolving a river claim has never been fully tested in court in other river disputes, he said, and that “lends some uncertainty to it.”

Kansas water official Barfield said the general idea was “if you steal a dollar and make $4,” there’s no incentive to stop what you’re doing from a damages approach.

“We want this to quit happening, basically,” he said.

But Nebraska NRD Manager Smith called it an odd way of doing things.” Instead of identifying damages, “what they quantify with $72 million is what they say Nebraska gained in production by not allowing X amount of water to go down the river.”

Beyond that, he said, “I can’t really believe the damages are that high.”

Reach Art Hovey at 473-7223 or ahovey@journalstar.com.