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Nebraska to make oral arguments to U.S. Supreme Court on water master findings PDF Print E-mail
Written by Wauneta Breeze   
Thursday, 09 October 2014 16:24

By Russ Pankonin

The Imperial Republican


Nebraska Assistant Attorney General Dave Cookson will deliver oral arguments to the U.S. Supreme Court next week on the November, 2013 findings of Special Master William Kayatta, Jr.

Nearly a year ago, Kayatta released his findings in a dispute between Kansas and Nebraska over Republican River flows that dates back to 2010.

Oral arguments by the two states will take place in Washington, D.C. Tuesday, Oct. 14. Representatives with the Upper Republican Natural Resources District will be present in the courtroom.

URNRD Manager Jasper Fanning told the board at their regular meeting Thursday, Oct. 2, that Cookson would be presenting Nebraska’s arguments.

He said the state’s legal team will be in D.C. all this week, preparing for the high court appearance.

He said the team will hold moot court at Georgetown’s law school and before the National Association of Attorney Generals.


Report favored Nebraska

In the 2013 finding, Kayatta rejected Kansas’ claim for $80 million in damages from Nebraska for unjust enrichment.

He said Kansas failed to prove it was entitled to an award based on unjust enrichment because it could show no bad faith by Nebraska.

In addition to the accounting change, Kayatta said Nebraska should not be charged for evaporation that occurred from Harlan County reservoir in 2006.

If upheld by the Supreme Court justices, Nebraska will gain the basin from 16,000 to 18,000 acre feet towards water use calculations for 2007.

Kayatta also said the water model used to measure compliance between the two states does not give credit for imported water that moves underground from the Platte River Basin into the Republican Basin.

This water comes into the basin from the seepage of water from Platte River irrigation canals at the edge of the Republican Basin.

Kayatta agreed with Nebraska that the groundwater accounting model incorrectly charged this use against Nebraska. As a result, he said all accounting from 2007 to present must be re-figured.

This could result in an annual credit towards compliance ranging from 6,000 to 10,000 acre-feet.


Other recommendations

Special Master Kayatta made the following recommendations:

—Kansas’ claim of actual damage in the amount of $6,577,165 should also be rejected.

Instead, Kayatta recommended Nebraska should only have to pay $5.5 million.

Of that amount, he attributed $3.8 million as the actual damages Kansas suffered by Nebraska’s overuse in 2006.

In addition, he said Nebraska should also pay $1.7 million to Kansas for the gain it received by pumping extra water in 2006.

—Kansas’ demand that Nebraska permanently shut down 302,000 irrigated acres should be rejected.

—Kansas’ demand for appointment of an independent River Master to dictate compliance terms should be rejected.

—Kansas’ request that Nebraska be found in contempt should be denied.

—All remaining requests by Kansas, including injunctive relief and sanctions, should be denied.


Further arbitration

After Kansas filed suit against Nebraska on these matters, the two states engaged in non-binding arbitration over the crediting of augmentation water released into the Republican River.

The Upper Republican NRD continues to operate its Rock Creek augmentation project. The district only receives 69 percent credit for the water pumped.

The NRDs that will operate the Lincoln County augmentation project will only receive 54 percent credit for each acre foot pumped.

Last year, Colorado operated an augmentation project with Kansas approving 100 percent credit for one year only.

Fanning told the URNRD board that Nebraska and Kansas continue to have positive discussions on an agreement over the augmentation credits.

He said the issue will have more clarity after three states meet in Denver on Oct. 22.