Kansas v. Nebraska

The recommendations of the Special Master appointed pursuant to the 2007 settlement of Kansas v. Nebraska should be followed to account for water allocation from the Republican River Basin under the Republican River Compact.

The Republican River Compact is an agreement between the States of Colorado, Kansas, and Nebraska which apportions water originating from the Republican River Basin. In 1998 Kansas brought the original action, claiming that Nebraska’s ground-water pumping has depleted the Republican River’s flow through Kansas. As a conflict between states, this is a matter of original jurisdiction. In 2002 the States reached a settlement which updated the accounting procedures for measuring the river’s flow. In 2007, after the first post-settlement accounting Kansas petitioned the Court for relief, alleging that Nebraska had exceeded its water allocation. The Court appointed a “Special Master” who determined that Nebraska had exceeded their water allocation, and recommended updating the accounting procedure. Both States filed exceptions to the Special Master’s recommendations. Kansas argued that the Special Master’s recommendation against injunction does not adequately ensure Nebraska’s compliance with the compact. Nebraska counterclaimed that the settlement inadvertently counts water from the Platte River in the accounting. The Court held that Nebraska had knowingly failed to comply with the settlement by failing "to put adequate compliance mechanisms in place in the face of a known substantial risk that it would violate Kansas’s rights." The Court also held, consistent with the Special Master’s recommendations, that the accounting procedures be updated so that water from the Platte River is not included in the accounting, and that Nebraska disgorge profits for using more water than the compact allows. The Court reasoned that they have broad remedial authority to resolve the dispute, and the Special Master’s recommendations best preserve the Compact.