The Supreme Court today ruled that Nebraska "recklessly gambled" in taking more water from the Republican River than it was allowed.
A majority of the justices held that Nebraska knowingly violated an interstate compact governing the river, depriving Kansas of water that should have flowed over the states’ border.
The court’s ruling, which is limited in scope, means Nebraska must pay Kansas $3.7 million, the value of the 70,000 acre-feet it unlawfully deprived Kansas of, plus a $1.8 million penalty.
But, in a win for Nebraska, the court also amended the compact’s accounting procedures so "imported water" — that not originally from the Republican River — won’t count against Nebraska’s allotment.
"Nebraska recklessly gambled with Kansas’s rights, consciously disregarding a substantial probability that its action would deprive Kansas of the water to which it was entitled," Justice Elena Kagan wrote for the majority.
The dispute between Kansas and Nebraska over the Republican River Compact has dragged on for decades.
Rising in Colorado, the 430-mile river crosses the northwest tip of Kansas before crossing into Nebraska. It later re-enters Kansas, traveling through a sparsely populated area.
The nearly 25,000-square-mile watershed is largely used to irrigate 1.8 million acres where mostly corn and wheat are grown.
An interstate compact among the three states was ratified by Congress in 1943. It allocates about 49 percent of the river’s flows to Nebraska, 40 percent to Kansas and 11 percent to Colorado.
Kansas has long claimed Nebraska is taking too much water through groundwater pumping. It has asked the Supreme Court to resolve its claims twice, and in the current litigation, the high court appointed a special master to review the claims.
The master — a federal judge — in November 2013 recommended penalties and reform of the accounting procedures of the compact.
Kansas and Nebraska objected to aspects of the master’s conclusions. Kansas wanted an injunction to stop Nebraska’s increased water use and opposed changing the accounting procedures because they would benefit Nebraska.
The new procedures would prohibit imported water from counting against Nebraska’s allotment under the compact. Nebraska contends some of its water is coming from the Platte River basin.
Nebraska challenged the conclusion that it knowingly violated the compact, as well as the $1.8 million penalty.
The Supreme Court upheld all the recommendations of the report. Kagan particularly criticized Nebraska’s claims that it could not have anticipated breaching the contract when it took 17 percent more than it was allowed in 2005 and 2006.
"[T]hat argument does not hold water. … Nebraska failed to put in place adequate mechanisms for staying within its allotment in the face of known substantial risk that it would otherwise violate Kansas’s water rights," Kagan wrote.
Further, Nebraska’s "efforts to reduce its use of Republican River water came at a snail-like pace."
Kagan also said updating the accounting procedures of the compact was appropriate.
"The procedures make water from the Platte subject to the Compact, in contravention of its scope," she wrote, "or conversely stated, they expand the Compact’s prescribed scope to cover water from the Platte. That is not within the States’ authority."
Four justices joined Kagan in upholding all of the special master’s recommendations: the court’s other three liberal justices and Justice Anthony Kennedy.
Chief Justice John Roberts concurred with most of it but disagreed that the court could reform the original compact by changing the accounting procedures.
Other conservative justices — Antonin Scalia, Samuel Alito and Clarence Thomas — agreed with the conclusion but would have gone further. Writing for those three, Thomas also would not have forced Nebraska to pay a $1.8 million penalty.
There are 25 interstate water compacts in the country, largely in the West. The court has heard several cases on compact disputes, leading to rulings that typically don’t establish broad precedents because they usually only deal with facts that are specific to the river and states in the case.
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