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| 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 www.imperialrepublican.com. |
| Closing on water loans |
| Written by Tony Rayl |
| Thursday, 18 December 2008 |
| The Colorado
Water Conservation Board signed off on loans to the Yuma
County Water Authority Public Improvement District and the
Republican River Water Conservation District, earlier
this week. CWCB's loan to the Yuma County Water Authority PID is for $9.5 million, which will be used toward the total $20 million purchase of senior surface water rights from the Colorado board of the Pioneer Irrigation District and owners of the Laird Ditch. CWCB's loan to the RRWCD is for $4.545 million, which will go toward the total of $5 million to the YCWA PID for a 20-year lease on the senior surface water rights. The YCWA PID will put the lease money toward the $20 million buyout. The CWCB Board approved both loans last month, with final approval and signing off on the loans coming earlier this week. Each loan is at 2.25 percent interest over 20 years. Yuma County Commissioner Robin Wiley said the CWCB money should be transferred to the YCWA PID by December 26. The remaining $5.85 million needed for the senior surface rights purchase, and associated administrative fees, was raised in a bond issue conducted on December 8. The bonds sold in about two hours, Wiley said, with the average interest rate being 4.46 percent. The maximum interest rate was 6.75 percent in the ballot question approved by Yuma County's voters November. The county's electors overwhelmingly approved a bond issue of $15 million for the purchase of the senior water rights, as well as the formation of the Public Improvement District. CWCB's loan was approved later in November, thus resulting in the bond issue being considerably less, and also driving down the overall interest rate for the county's property tax payers. Closing on the water purchase is set for December 29, at which time Yuma County and its residents will become owner of the senior water rights on the North Fork of the Republican River in Colorado. The RRWCD's 20-year lease is set to kick in simultaneously. |
| Pipeline waits on RRCA approval |
| Written by Tony Rayl | |||||||||||
| Thursday, 16 October 2008 | |||||||||||
| The Republican River Water
Conservation District continues preparing to construct the
Compact Compliance Pipeline, but will not close on the deal
unless the Republican River Compact Administration gives its
okay. Peter Ampe with the Colorado Attorney General's Office was present at the RRWCD Board of Directors' regular quarterly meeting, last Thursday in Wray. Ampe provided as much of an update on negotiations between Colorado, Kansas and Nebraska in regards to the pipeline. He was not able to reveal much, citing a confidentiality agreement in regards to the negotiations. Ampe did say there had been two long phone conversations among the three states' representatives during the previous two weeks. He said the next phone meeting is planned for November 4. If the issues are not resolved then, Ampe said Colorado will try to quickly get the states together for two to three days of face-to-face negotiations. If there is nothing after that, Ampe said the AG's office would come back to the RRWCD Board with more details. He noted that Colorado is attempting to avoid taking the pipeline issue to non-binding arbitration, saying that process takes at least six months. Kansas and Nebraska have entered non-binding arbitration concerning Nebraska's objections to compact model accounting methods. That process was begun this past summer, and a ruling is not expected until the middle of 2009. RRWCD legal counsel Dennis Montgomery noted Kansas and Nebraska must shoulder the blame if Colorado is out of compliance next year because it could not get the pipeline done as planned. “I find it at least as frustrating as all of you,” Ampe responded, “and mind-boggling that they don't want this water.” As for the proposed pipeline, the district continues moving forward in getting everything in place in case it ever is approved by the RRCA, such as securing easement agreements. However, the RRWCD is not going to close on the purchase of the 50-plus wells north of Laird intended for the pipeline until the RRCA issues are resolved. The RRWCD has paid a $5 million down payment, but has not closed on the full purchase, and might be able to recover some of the downpayment if the pipeline does not become a reality. The RRWCD also has taken the position that it will not move forward with the pipeline unless the South Fork sub-basin issue is resolved. Kansas is claiming it still needs a certain amount from the South Fork of the Republican River, even with the pipeline in place. If Colorado irrigators along the South Fork face curtailment because of that issue, the RRWCD will not build the pipeline.
Ground water districts Members of the RRWCD Board's Executive Committee have met with the Arikaree Ground Water Management leaders, following the Arikaree district passing a vote of no confidence in the RRWCD this past August. Since then, several ground water management districts have passed resolutions stating they have voted with confidence in what the RRWCD Board is doing. The Arikaree leaders met with the RRWCD Executive Committee, as well as State Engineer Dick Wolfe and Alex Davis, the assistant director of water for the Colorado Department of Natural Resources, on September 9. RRWCD Board President Dennis Coryell reported the parties agreed on some points, and did not on others. Coryell added that he thinks the situation is a matter of education. “People are starting to understand the complexities of compliance,” he said. Conservation programs? RRWCD Board Member Tim Pautler made a case toward possibly working toward a conservation program in the future, during last week's meeting. He said discussions were held, during a Farm Bill meeting in Yuma recently, with the USDA's NRCS personnel. A new Agricultural Water Enhancement Program (AWEP) presents a great opportunity to partner on programs to conserve the aquifer and stretch it out, Pautler said — clarifying that such programs would come after Colorado is in compliance with the Republican River Compact. A conservation plan for the entire Colorado Republican River Basin could be formulated, but it would require RRWCD money. Pautler said the NRCS personnel were open to creative financial commitment from the RRWCD, such as the district paying its share later in the program with the NRCS covering the front end. Board member Kim Killin said she likes the idea but reminded everyone there is a big financial burden being carried by the people in the basin already, so to step carefully. The board unanimously approved authorizing Pautler and Tim Davis, the district's CREP consultant, to start the application process to have the NRCS put together a proposal for a long-range conservation plan. It does not obligate the RRWCD to anything at this point. Board appointments Reappointed to the RRWCD Board have been Tim Pautler as the Kit Carson County representative, Kim Killin by Phillips County, and Eugene Bauerle by the Marks Butte Ground Water Management District. The Arikaree Ground Water Management District had not made its appointment. |
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| YCWA PID convenes for first time |
| Written by Tony Rayl | |
| Friday, 05 December 2008 | |
| The Yuma County
Commissioners convened for the first time as the Yuma County
Water Authority Public Improvement District, last Wednesday
during its regular end-of-month meeting. Commissioners Robin Wiley, Dean Wingfield and Trent Bushner passed a resolution authorizing a $9.595 million loan from the Colorado Water Conservation Board (see last week's Pioneer). They passed another resolution to assume the purchase agreement from the county for the purchase of water rights from the Laird Ditch and the Colorado portion of the Pioneer Irrigation Company. Closing on the CWCB loan, the selling of bonds, closing on the surface water purchase, and leasing the rights for 20 years to the Republican River Water Conservation District, is all scheduled to take place this month. Rest of meeting Mark Shaw and Ken Monk presented the Road and Bridge Department's report. The commissioners learned the crack-seal has been completed on the Lone Star Road pavement, and has begun on the Vernon Road pavement. The mowing has been completed throughout the county with some clean-up begun in some areas of early mowing. John Crosthwait and staff from Northeast Colorado Health Department gave a presentation on NECHD activities for the past year. During the Human Services report with Dave Hensen, it was noted that Health and Human Services would begin administering the commodities program for the county. County Clerk Beverly Wenger presented the certification of the election results from the November General Election. Following a public hearing, the commissioners approved an Exemption From Subdivision Regulations for Bittercreek Pipelines, dividing nearly two acres from 160 acres south of Idalia. Another exemption was approved for Dale Dukes and Kathryn Hilliard to divide 40 acres north of Wray into four parcels. Sheriff Sam McCoy presented a VALE Grant award to be accepted for Victim's Assistance in the amount of $19,356. He also discussed the rotation of patrol cars. Two cars will be taken out of service but will be offered for sale to other local taxing entities. One gas-drilling permit was approved for Noble Energy. The monthly tour of the Yuma County Jail concluded the meeting. There were 38 prisoners being housed, with eight being contracts from other counties. The commissioners' next scheduled meeting is December 15 in the Yuma County Courthouse in Wray. |
| Work begins after passage of 5B and 5C |
| Written by Tony Rayl | |
| Thursday, 06 November 2008 | |
| Yuma County voters made
history in Tuesday's elections, passing ballot questions 5B
and 5C in a landslide vote. Unofficial results show the initiatives garnered more than 70 percent of the popular vote. Ballot question 5B won with 76-percent of the ballots cast in favor, 3,384-1,049, while 5C won with 82 percent of the vote, 3,627-790. (Complete results from Yuma County can be found elsewhere on this website.) Voter turnout in the county among the 4,949 active registered voters was 93 percent as 4,599 ballots were cast. “I'm just very happy with the turnout and the voters truly understanding how important this was to the county,” said Commissioner Robin Wiley, one of the key organizers in the formation of the Yuma County Water Authority, and in helping formulate the proposed purchase of senior surface water rights on the North Fork of the Republican River. “The concern was there would be confusion because this is a complicated issue, but the voters obviously understood how important this was to our future,” Wiley said. Passage of the $15 million bond issue (5B), and the formation of the Yuma County Water Authority Public Improvement District (5C), means the $20 million buyout of the senior surface water rights along the North Fork of the Republican River will proceed. It also means the threat of shutting down thousands of high-capacity wells in Yuma County will go away, as the petition to do just that by the owners of the Pioneer Irrigation Company, and some owners of the Laird Ditch, before the Colorado Ground Water Commission will be dropped. The purchase contract is in place, but will not kick in until the bonds are sold, which is expected to occur in December. Speaking of the bonds, the YCWA has a $9.5 million loan request before the Colorado Water Conservation Board (CWCB) to be used toward the water rights purchase. The CWCB is expected to act on the loan request later this month. The interest rate will be around 2.25 percent, which will reduce the overall interest rate to the county's property owners. If approved, it will mean the county will have to issue only $5.875 million (including $375,000 for legal and bonding services and fees) in bonds. A lease agreement with the Republican River Water Conservation District for $5 million, for a 20-year lease on the senior water rights, also is in place, accounting for the balance of the total buyout. |
| RRWCD special meeting in Lakewood |
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| Written by Tony Rayl | |
| Thursday, 06 November 2008 | |
| The Republican River Water
Conservation District Board of Directors will hold a two-day
special meeting at the Sheraton Denver West Hotel in
Lakewood, November 12-13. It will run from 1 to 5 p.m. on Wednesday, November 12, and from 8 a.m. to 4 p.m. on Thursday, November 13. Public comment will be heard at 4:45 p.m. on November 12. The board will receive an update on the purchase and sale agreement between Yuma County and surface owners, whose fate was determined Tuesday in the election. It also will hear a report on the loan contract with the Colorado Water Conservation Board (CWCB) for the compact compliance pipeline project, a report on the loan contract with the CWCB for the lease payment for surface water rights (if voters approved the purchase), and an agreement regarding the Wilson No. 1 water right. Engineers will provide an update on the compact compliance pipeline design status, and the construction bid process. The State Engineer's Office also will discuss the status of the Republican River Compact Administration approval of the augmentation plan for the pipeline. There also will be discussion on the status of pipeline project easements. For further information, please contact RRWCD General Manager Stan Murphy at 332-3552, or by email at rrwcd@centurytel.net. |
| North Fork buyout three years in the making |
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| Written by Tony Rayl | |
| Thursday, 02 October 2008 | |
| The potential historic
purchase by Yuma County's property owners of senior surface
water rights on the North Fork of the Republican River, has
been more than three years in the making. Passage of 5B would open the door for a $15 million bond issue, with the money going to purchase the senior surface water rights. The total buyout of the owners of the Pioneer Irrigation Company and certain owners of the Laird Ditch will be $20 million, with the extra $5 million coming from the Republican River Water Conservation District for a 20-year lease on the water, which it will use for Republican River Compact compliance. Passage of 5C would create the Yuma County Water Authority Public Improvement District, which would oversee the bond issue and the ownership of the senior surface water rights for the citizens of Yuma County. Both need to be passed for the buyout to go forward — and would eliminate the lawsuit from Pioneer and Laird. The lawsuit seeks the shutting down of all high-impact wells within 20 miles of the North Fork, which includes the municipal wells of Wray, Eckley and Yuma, several commercial wells, and approximately 1,338 irrigation wells, which would send approximately 190,000 acres into dry land. Lawsuit history The petition by the owners of Pioneer and Laird dates back to the summer of 2005, when it was first filed with the Colorado Ground Water Commission. (The Republican River Water Conservation District already had been in existence for one year, working toward compact compliance, which is a separate issue from this petition, which involves only Yuma County.) The petition filed in July 2005 requested the Ground Water Commission issue an injunction to cease diversions in order to allow the Pioneer Ditch and Laird Ditch to divert its full decreed amount. Local ground water management districts got involved as objectors, as did Yuma County and the county's municipalities, as well as some individuals. (The Town of Otis was involved but pulled out earlier this year as it became apparent it would not be included in any potential curtailment zone.) Both sides got to have their say before the Colorado Ground Water Commission in May 2006. It was at that time the ground water commission voted 6-3 to grant the well-users motion to dismiss the petition from Pioneer and Laird. The argument centered on the use of the model created by Colorado, Nebraska and Kansas for the Republican River Compact, in determining the impact ground water pumping has on the surface flows for the Pioneer and Laird owners. As expected, Pioneer and Laird's legal team filed an appeal in Yuma County District Court a few weeks later, June 16, 2006. In fact, two appeals were filed, the other coming from Colorado's Attorney General Office for the Colorado Division of Wildlife and Wildlife Commission, which was concerned about stream flows to its fish hatchery west of Wray. The Colorado Ground Water Commission and State Engineer filed a motion to dismiss, which was denied on October 31, 2006 by District Court Judge Connie L. Peterson. It was about that time a ruling was handed down by the Colorado Supreme Court in the case of Gallegos v. Ground Water Commission, a case that had been closely watched by all parties involved in the Pioneer/Laird litigation. Both parties argued that the ruling helped make their case. In light of the Gallegos ruling, the State Engineer and Colorado Ground Water Commission filed a motion for Judge Peterson to reconsider her previous denial of their motion to dismiss. Judge Peterson denied that motion on December 6, 2006, stating that although it is an “excellent, clarifying opinion, the Gallegos case did not announce new law and did not change existing law. It summarized long-existing Colorado law.” With that out of the way, the case continued in Yuma County District Court. After several filings by both sides, Judge Peterson issued her final rulings on several points in late July, also remanding the case back to the Colorado Ground Water Commission. Among Judge Peterson's rulings was that the plaintiffs can use the Republican River Compact Administration Model as admissible evidence to prove groundwater depletions "and anything else supported by the Compact Model's findings and conclusions." It was ruled the ground water commission cannot dispute the Compact Model's findings and conclusions. However, the compact litigation, rulings and model does not automatically give the victory to the Pioneer Ditch Board. Judge Peterson ruled that the model may present some evidence of injury "but it is not conclusive evidence of injury to the extent that, the Court may find injury as a matter of law. The plaintiffs still have the burden of proving the applicability of the compact model's conclusions, findings and data to the facts of the case." The defendants may not challenge model's relevancy and credibility, "but they may challenge its application as offered by the Plaintiffs if for purposes other than Compact accounting." Judge Peterson's 19-page ruling set in motion the case going back before the Colorado Ground Water Commission. In February of this year, the case was set for a three-week hearing before the commission, to be held in Wray beginning in early June. Yuma County Water Authority It was September 2007 when Yuma County's county and municipal leaders first met together in Eckley to seriously discuss the formation of the Yuma County Water Authority. The leaders' focus centered on finding a solution to the Pioneer and Laird litigation that would satisfy the senior surface water owners while also keeping the county's high-capacity wells pumping. After much fine-tuning of the legal documents dictating the formation and administration of the YCWA, and addressing concerns raised by the City of Yuma, the Yuma County Commissioners, Wray City Council, Eckley Town Board of Trustees, and Yuma City Council signed off on the Yuma County Water Authority this past spring. 20-mile zone It was about the same time as parties were issuing their final filings prior to the June hearing before the Colorado Ground Water Commission. In its final filing, Pioneer and Laird stated it would seek the curtailment of all high-capacity wells within 20 miles of the North Fork and its tributaries. That filing pulled the City of Yuma directly into the fray, as its municipal wells are within the 20-mile zone. State Engineer Dick Wolfe, appointed to the position early in the year, also became intimately involved in the case, pushing both sides to reach a settlement before it went before the Colorado Ground Water Commission. Wolfe got the sides together for a pre-mediation conference in Denver on April 14, at which point all parties agreed to meet again in pre-mediation in Wray on April 28. Through these meetings came the idea of leasing the senior surface water rights from the Pioneer and Laird ditches for one year, opening the door for both sides to have more time to work out a permanent settlement. The Republican River Water Conservation District agreed to pay at the rate it was paying for other surface water leases, with the YCWA trying to come up with the balance to meet Pioneer and Laird's full asking price. However, as the early June evidentiary hearing approached, the two sides remained millions of dollars apart on a final buyout price. It appeared the hearing was going to begin as planned, but Wolfe kept pushing both sides to continue negotiations, and an 11th hour deal was struck. They agreed on a $20 million purchase price. The RRWCD agreed to pay $5 million for a 20-year lease, while the YCWA began working toward a voter-approved bond issue to raise $15 million through a voter-approved bond issue. If voters approve both 5B and 5C, Pioneer and Laird's owners will get their money, the people of Yuma County will own the senior surface water rights on the North Fork, and the Pioneer/Laird litigation will go away. If not passed, the hearing before the Colorado Ground Water Commission is scheduled to begin in January, which will be the beginning of a legal process both sides expect will last several years and cost a large amount in legal fees. |
Impact on Towns Ballot initiatives 5B & 5C click here
See the Graphs Slattery presented at the July 10, 2008 RRWCD meeting
YCWA & RRWCD start on buy out agreement
CREP funding for basin is approved with the new farm bill
Grounded in Uncertainty - Rocky Mountain News
Kansas seeks $72M from Nebraska over river
So far, Nebraska not countering Kansas river demand
The actual documents:
Cover Letter KS to NE seeking $72 Million
For an easier to read copy of the attachments see http://www.waterclaim.org/blog/
Mediation will begin Monday April 28th on the Pioneer Ditch
The City of Yuma Joins Water Authority.
Mike Thoren CEO of Five Rivers speaks out on his opinion regarding the Pioneer issues
Colorado Pipeline will not include hydropower
Nebraska looks at augmentation sites
Document outlines YC Water Authority
Nebraska's Ann Bleed departs abruptly from Gov. Heineman's administration effective immediately 3/24/08See Journal Star Article
See Mccook Gazette Article
Pipeline issue progressing at Capitol
see Journal Advocate Article
Larson appointed to RRWCD board
see Journal Advocate Article
CAPA's Report on Republican River Compact Administration Special Meeting March 2008
South Platte HB 1030 fails to pass third reading see Denver Post Article
Senate Bill 28 on Bonny withdrawn
see Journal Advocate article
see article from the Denver Post
Nebraska is Considering a Compact Compliance Pipeline of their own. see link
Kansas dispute letter 2/8/08 see link
Newsletters
January Newsletter 2008
Other States
What's happening in Nebraska
Archive
Testimony on senate bill 28 see Denver Post Article
Nebraska tax dispute up to judge click link
New York Times Article on water management in the west. The future is drying up
Producers meeting in Arkansas Valley on measurement rules click link
State Engineer's Response to Producer meeting in Arkansas Valley click link
Where's the Water? To view this You Tube Video click here
Nebraska response letter to Kansas 2/8/2008
Letter from Kansas to Nebraska on compliance Remedy Nebraska 12/19/07
Funding for the pipeline craigdailypress.com
Colorado Task Force on water recommend more money for computer models and more money for voluntary retirement see task force
CAPA Press Releases