Good news on Republican River, for now

There are still unanswered questions and Nebraska is far from off the hook, but a special master's finding is good news for those of us who live along the Republican River in Southwest Nebraska.

Maine attorney William Kayatta Jr. recommended to the U.S. Supreme Court that Nebraska pay Kansas $5.5 million for using more water than it was entitled to, under the 1943 Republican River Compact, during the 2005-06 years.

That was more than the $10,000 recommended by an arbitrator, but far less than the $80 million Kansas had demanded in its 2009 lawsuit over a 2003 settlement.

The original compact allocated 11 percent of Republican River water to Colorado, Nebraska 49 percent and Kansas 40 percent.

Kansas contended that Nebraska used 25.7 billion gallons more than it was due in 2005 and 2006.

Kayatta didn't go along with Kansas idea of appointing an independent river master to dictate compliance terms for water use, and also rejected an order to permanently shut off irrigation pumps on more than 300,000 acres along the river in Nebraska.

He did chide Nebraska for not moving quickly enough or going far enough to make sure Kansas got its share of water.

"The shortage in water supply between 2002 and 2006 allows Nebraska to say that it suffered some bad luck, and perhaps might have complied with the compact had it received good luck in the form of wet years," Kayatta wrote. "The fact remains, though, that prior experience rendered it foreseeable that there would likely be both dry and wet periods, and Nebraska took steps adequate, at most, only for the latter."

His $5.5 million recommendation was reached by adding $3.7 million in economic losses in Kansas because of Nebraska's overuse of water, and an additional $1.8 million in disgorgment, or the repayment of ill-gotten economic gain.

Kansas and Nebraska attorneys general both found reasons to declare victory.

Jon Bruning saw victory in the special master's acknowledgement that "Nebraska should have the right to govern its own water users without the oversight of an independent river master."

Kansas Attorney General Derek Schmidt hailed the "disgorgement of unjust gains in calculating damage is a groundbreaking development."

"This recommendation, if adopted by the Supreme Court, can change the economics of overuse and send a powerful message to discourage future overuse of water by our neighbors to the north," Schmidt said in an emailed statement.

There's always a chance that the Supreme Court won't go along with the special master's recommendation, but that's not the only cloud hanging over the Republican River dispute.

Disputes over water usage among Nebraska's Natural Resources Districts themselves, as well as one solution -- taking irrigated cropland out of production and pumping the water into a river, sometimes in a different basin -- will no doubt be challenged in court, which could throw Nebraska's compliance effort into disarray.

For now, however, the special master's recommendation is good news.