Republican River Compact Compliance: Overview of February 2015 U.S. Supreme Court Ruling

“The court’s decision is a victory for common sense, grounded in science…” Omaha World Herald editorial, Feb. 27, 2015

The accounting change approved by the court dwarfs the KS financial award:

• Nebraska will no longer be charged with the consumption of “imported” water that seeps from the Platte Basin into the Republican Basin.

• The accounting change that ensures this consumption will not be included will act as a credit to Nebraska of approximately 10,000 acre feet annually that will grow over time, possibly to roughly 20,000 acre feet annually.

• The financial award to Kansas is a one-time payment of $5.5 million; the value of the 10,000 acre foot credit is about $20 million annually and will grow with the credit over the long term.

The accounting change, which acts as an annual credit will substantially reduce augmentation pumping:

• The average compliance deficit NRDs have had to close for 2013-2015 has been approximately 23,000 acre feet.  There was nothing to make up in 2008-2012. Had the roughly10,000 acre foot credit approved by the Court been in place for 2013-2015, the average deficit would have been approximately 7,000 acre feet, a decrease of 70%, and would have averaged less than 3,000 acre feet for the 2008-2015 period.

• NRDs have designed the NCORPE and Rock Creek Augmentation projects to pump about the same amount of water that would have been pumped for irrigation over the long term on the 21,000 acres it has retired. The accounting change ensures less water is pumped than what would have been used had the land remained irrigated.

• Had the accounting change been in place in 2012, no water would have been pumped from the Rock Creek project. The amount of water pumped in 2014 and 2015 from the NCORPE project would have been reduced by more than half.

• As the credit grows to possibly 20,000 acre feet, using the augmentation projects could be a rare occurrence.

The accounting change and augmentation will not cause NRDs to loosen water-use regulations and will help surface water users:

• At the same time the Rock Creek and NCORPE augmentation projects were being implemented, the Upper Republican NRD, Middle Republican NRD and Lower Republican NRD enacted some of the most stringent groundwater pumping regulations in their District’s respective histories.

• The Republican Basin remains the largest area of regulated groundwater use in Nebraska and possibly the country.

• Allocations in the Republican Basin have dropped about 40% since first being enacted.

• The 10,000 acre foot credit will increase the amount of surface water that Nebraska irrigation districts can divert, as the credit is now Nebraska’s water instead of Kansas’ water. The amount of time NE surface water users would need to be administered to prevent the diversion of KS’s water will be reduced significantly.

Kansas received only a small portion of what they requested:

• Kansas had requested that 300,000 – 500,000 irrigated acres in Nebraska’s portion of the basin, or about ¼ to nearly ½ of the irrigation in the Basin, be permanently shut down. No shutdown will occur, no outside river master will be appointed to mandate restrictions in Nebraska.

• Had 500,000 irrigated acres in the Republican Basin been shutdown, it would have reduced assessed values of land within the Basin by nearly $1 Billion.

• Kansas initially requested $80 million from Nebraska. The $5.5 million it will receive represents less than 7% of the original demand. Kansas’ court costs were approximately $4.5 million.

The favorable decision for Nebraska is largely a result of leadership and a high level of competency displayed by the Department of Natural Resources, Attorney General’s Office, its outside counsel and consultants. Their expert knowledge of the compact, compact settlement and compact accounting gave Nebraska a distinct advantage. Their efforts were assisted by the ability of the NRDs to implement significant projects to provide wet water to Kansas with limited resources in a short period of time. Kansas and Nebraska appear to be on a path of improved relations and negotiations relative to the compact that could even further benefit water users in both states.