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Trial date set for second Kansas-Nebraska water suit PDF Print E-mail
Written by Wauneta Breeze   
Thursday, 31 May 2012 13:18

By Russ Pankonin

The Imperial Republican


Water disputes between Kansas and Nebraska will go back to trial Monday, Aug. 13 in Portland, Maine.

Both states will present their case in front of Special Water Master William J. Kayatta, Jr., of Portland, Maine.

Kansas says Nebraska violated the terms of the initial settlement over use of water in the Republican River Basin.

Unsatisfied with the June 2009 results of non-binding arbitration, Kansas asked the U.S. Supreme Court to re-examine their claims against Nebraska and Colorado.

The U.S. Supreme Court accepted Kansas’ request and appointed Kayatta to hear the case.

Kayatta comes from the same law firm as Vincent L. McKusick, the special master who oversaw the initial 2002 settlement between Kansas and Nebraska.


Remedies sought by Kansas

Lincoln attorney Don Blankenau, who is serving as a special assistant to the Nebraska Attorney’s general office, said Kansas is after two primary remedies: cash and shutdown of 300,000 acres of groundwater irrigation in Nebraska.

Kansas went into arbitration in the fall of 2008, seeking $72 million in damages but came away with nominal damages of only $10,000 and no damages for indirect economic impacts.

However, the arbitrator left the door open for Kansas to substantiate their claims and methodology before a court.

Blankenau said Kansas now is seeking $50 million in damages, although documents show Kansas says they only suffered $5 million in actual damages.

Nebraska will contend actual damages from its overuse of Republican Basin water in the mid-2000s are far less than Kansas believes.

In the 2008 arbitration, Kansas also sought to reduce Nebraska’s groundwater-irrigated acres in the basin by 515,000 acres to insure compliance.

The arbitrator sided with Nebraska, saying the compact settlement gave Kansas no authority to tell Nebraska how to stay in compliance.

Now, Kansas is seeking the shutdown of 300,000 groundwater-irrigated acres in the basin.


Interests in line with Kansas?

In an odd turn of events, Blankenau said Kansas lists Brad Edgerton, manager of the Frenchman Cambridge Irrigation District (FCID), as one of its witnesses.

To have a Nebraska irrigation district appearing as a Kansas witness doesn’t help the appearance of the state’s case, Blankenau said.

During an April deposition by Nebraska’s attorneys, Edgerton said the FCID board feels their “interests are sort of in line with Kansas’ interest and right down to the fact that we have been shorted water by a state not complying with the compact,” meaning Colorado.

Edgerton said FCID absolutely does not want groundwater acres shut down. They have members who use both surface water and groundwater.

He said they believe the basin above their diversion dam at Cambridge has been over-developed, depleting surface water availability in the basin’s rivers and streams.

Their request to have the Department of Natural Resources re-evaluate the basin upstream was denied by the state Supreme Court.

He said they are trying to protect their water rights as depletions in river flows continue to decline.

He noted if the state falls out of compliance, surface water use is also curtailed.