Summary of Final Settlement Stipulation in Kansas v. Nebraska and Colorado (Republican River Compact interstate litigation) EXECUTIVE SUMMARY OF THE FINAL SETTLEMENT STIPULATION • It provides for dismissal of the lawsuit and waives all claims through December 15, 2002. Colorado will not face large claims for damages or burdensome administrative requirements imposed by the Court. We have avoided the expense and uncertainty of an interstate Supreme Court trial. Nebraska has agreed to a moratorium on new well construction above Guide Rock. Colorado and Kansas have agreed to no relaxation of their existing laws and regulations on well construction, preserving our status quo. In compact accounting, sub-basin allocations may be added together, to a certain extent, and accounting will be done on a five-year rolling average, two provisions that will aid in Colorado’s compliance. The complex accounting for ground water uses will be handled by a computer model developed cooperatively by the three States’ modeling experts, ensuring the most fair and accurate model possible. The model has been completed and calibrated, and adopted by the Republican River Compact Administration. The States have agreed to a number of other provisions to improve administration and decrease the chances of future conflicts: the RRCA Accounting Procedures have been re-done for much more specificity; Kansas and Nebraska have set out procedures for administration of the water supply at Guide Rock; the States and the federal government will conduct several studies to improve understanding of water supplies and use in the basin; and a dispute resolution process is set out. DETAILED DESCRIPTION OF FINAL SETTLEMENT STIPULATION PROVISIONS I. General Provisions A. [“The States agree to resolve. . .”] B. [“The States also agree…”] A & B are simply statements that the States agree to end the lawsuit and abide by the Stipulation. C. [Waiver] This key provision releases all parties from the threat of damages or other claims. D. [Savings clause to waiver] Any claims that arise after the date of the stipulation may still be litigated. E. [Information sharing requirements] The States will keep each other informed as set out in more detail in an appendix.
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F. [Modification of Accounting Procedures] The RRCA’s Accounting Procedures were revised to include much more detail and are attached as an appendix. This provision makes it clear that the RRCA may modify the Procedures later if it finds that necessary. G. [Headings] H. [Supersedes Settlement Principles] I. [Enforceability of Modeling provisions] G, H & I are all legal provisions about applying and interpreting the Stipulation. J. [Revision of RRCA rules & regulations] The RRCA has procedural rules that may need revisions once the settlement is final, and this provision sets a time period of 6 months after dismissal for that process. II. Definitions. Most of the definitions should be self-explanatory, and additional explanation is not provided. Some definitions simply refer to the RRCA Accounting Procedures, Appendix C, because they relate to accounting and may be changed by the RRCA to respond to future accounting needs. Acre-foot – definition taken from the Compact. Actual Interest – relates to section VII, dispute resolution. Addressed by the RRCA – relates to section VII, dispute resolution. Allocations Annual Basin – definition refers to the Compact. Beneficial Consumptive Use – definition taken from the Compact Compact Computed Beneficial Consumptive Use – an accounting term, distinguished from Beneficial Consumptive Use because some uses are impossible to quantify and account for. Computed Water Supply Conservation Committee Court – Designated Drainage Basins – definition refers to the Compact. Dewatering Well Federal Reservoirs Flood Flows Guide Rock Historic consumptive use Imported Water Supply Imported Water Supply Credit Main Stem – definition refers to the Compact. Main Stem Allocation Modeling Committee Moratorium Non-Federal Reservoirs Northwest Kansas
Proposed Consent Judgment Reasonable Opportunity – relates to section VII, dispute resolution. Replacement well RRCA RRCA Accounting Procedures RRCA Groundwater Model State States Stipulation Sub-basin – definition refers to the Compact. Submitted to the RRCA – relates to section VII, dispute resolution. Test hole Trenton Dam Unallocated supply – definition refers to the Compact. Upstream of Guide Rock, Nebraska Virgin Water Supply – definition from the Compact Water Supply of the Basin/Water Supply within the Basin Well III. Existing Development. A. Moratorium on new Wells. The key provision prohibiting construction of new wells. Although the moratorium applies to “the States,” Kansas and Colorado are excepted by subparagraph III.B.2. 1. [moratorium substance] The moratorium may be modified if new information, such as the ground water model, show that water is actually available under the Compact. 2. [savings clause] No moratorium imposed other than in the Basin. 3. The moratorium may not be modified upstream of Trenton Dam (Swanson Reservoir, in southwest Nebraska) without Supreme Court approval. B. Exceptions to Moratorium on new Wells 1. [Exceptions for types of wells:] a. Wells within small portions of Nebraska Natural Resource Districts (NRDs) that are primarily outside the Basin. As of December 2002, the three NRDs wholly or mostly within the Basin have adopted regulations implementing the moratorium. b. Wells located in the northern part of the basin, where return flows from irrigation diversions from the Platter River have caused documented increases ground water levels (often referred to as the “ground water mound”). c. Test holes d. Dewatering wells e. Wells constructed to pump 50 gpm or less f. Wells constructed to pump 15 afy or less g. Replacement wells
h. Wells to prevent a public health emergency i. Wells to which an exiting right is transferred j. New municipal and industrial wells, although such use must be accounted for and other uses may have to be reduced to stay within Compact allocations. k. Augmentation wells. Because a significant amount of pumping from the Ogallala aquifer depletes ground water storage rather than stream flows, it may be possible to use wells to augment stream flows for Compact compliance. This provision acknowledges that possibility, and leaves approval of specific procedures to the RRCA. 2. Because existing restrictions in Northwest Kansas and in Colorado have resulted in de facto moratoriums (in the last decade in Colorado, only 2 or 3 new wells were permitted), those areas are excepted from the moratorium provided that existing laws and regulations are not made less stringent. C. Surface Water Limitations. The settlement recognizes that each State has what amounts to a de facto moratorium on new surface water rights. In Colorado, this recognizes the over-appropriated nature of the streams. States must notify each other before new surface rights or permits are obtained. For Colorado, this will require notifying the other States of any applications for new surface rights published in the resume. D. Reporting. In order to check on implementation of the well moratorium, each State must report relevant information to the others. IV. Compact Accounting A. [Accounting Procedures.] Generally, accounting will be done according to the RRCA Accounting Procedures, Appendix C. B. [Sub-basins.] Because the Compact makes allocations from the water supplies of designated drainage basins, it is not clear whether accounting must be done on a sub-basin by sub-basin basis, or by statewide totals. This provision reflects a middle ground, establishing that a State may use more than its specific allocation in a sub-basin if four requirements are met: (1) the water is physically available; (2) the use doesn’t impair a downstream State’s ability to use its subbasin allocation; (3) the use is not in excess of the State’s total statewide allocations; and (4) the use is in compliance with the special administrative requirements for “water short year administration” at Guide Rock (subsection V.B). The RRCA Accounting Procedures set out specific calculations for meeting these tests. To understand this provision, one must look back at the sub-basin allocations. For example, the Compact-calculated virgin water supply of the North Fork of the Republican River in Colorado is 44,700 acre-feet. Of that total, 10,000 acre-feet are allocated to Colorado and 11,000 acre-feet to Nebraska. The remainder, 23,700 acre-feet, is “otherwise unallocated” and thus forms part of the water supply for the main stem. So on the North Fork, Colorado’s use could not impair Nebraska’s 11,000 acre-foot allocation. It could, however, use part or all of the otherwise unallocated 23,700 acre-feet as long as that use was balanced out by an underuse in another basin, such as the Arikaree. This
provision is essential, because current water use in the basin, based primarily on wells, has not followed the basin water supplies anticipated in the Compact. C. [RRCA Groundwater Model.] Provides that stream flow depletions and credit for imported water will be determined by the jointly developed model. 1. Results from the model will be included in compact accounting as set out in the RRCA Accounting Procedures. This allows the RRCA to adjust accounting as needed. 2. through 9. are the provisions governing completion of the model and procedures if the States could not agree on the model. The model has been completed and agreed upon, so these sections are no longer relevant. D. [Five-year rolling average.] Except as described in Subsection V.B. (dealing with shortages in the lower Republican basin), compact accounting shall be done on a five-year rolling average. This smoothes out the effect of hydrologic fluctuations and makes compliance a little easier. E. [System Improvements.] In conjunction with the United States (the Bureau of Reclamation) the States are cooperating in a study of improving the diversion and storage infrastructure in the lower Republican basin. This may improve the reliability of the water supply for the largest irrigation district in Kansas. Colorado is participating by making staff available for parts of the study. F. [Imported water supply.] This provision deals with the “groundwater mound” in Nebraska, where irrigation from the Platte has recharged groundwater so much that it is flowing into the Republican River basin and augmenting the supply there. Nebraska gets credit for this. G. [Measurement, data & reporting.] Provides that the RRCA Accounting Procedures will control these requirements. H. [Augmentation credit.] If augmentation wells are used for compact compliance (see III.B.1.k. above), the RRCA Accounting Procedures will provide the specifics. V. Guide Rock. (This refers to the diversion point within Nebraska where the Kansas Bostwick Irrigation District obtains its supply. KBID’s supply concerns were a major impetus for Kansas filing suit. Most of these provisions govern Nebraska and Kansas relations and will not be discussed in detail.) A. Additional water administration. 1. KBID priority is February 26, 1948. 2. When supply at Harlan County Reservoir (“HCR”) is below 130,000 AF, Nebraska will administer the river between HCR and Guide Rock. 3. Nebraska will protect HCR releases for delivery to Guide Rock. 4. Kansas and Nebraska will work to minimize bypass flows at Guide Rock. B. Water-Short Year Administration. 1. Identification of Water-Short Year Administration. a. When supply at HCR is below 119,000 Acre-feet. b. BoR will provide monthly estimates of HCR supply. 2. Nebraska action in Water-Short Year Administration.
a. Nebraska will limit its total uses above Guide Rock as specified. i. through vi. list methods Nebraska may use b. Under certain conditions, Nebraska may offset its uses above Guide Rock with imported water from the groundwater mound. c. Nebraska will limit its uses in sub-basins above Guide Rock as specified. d. Nebraska must inform the other States and the United States of measures it is taking to limit its uses. e. For water-short years, Nebraska’s compliance will be measured on a two-year running average rather than a five-year running average, unless Nebraska invokes a special “plan” as set out in Appendix M. f. Places some limits on Nebraska’s uses in a year following water-short year administration. g. If the HCR supply recovers above 119,000 AF, Nebraska may cease the actions set out above. 3. Colorado action. In a water-short year, Colorado cannot apply any of its unused allocation from Beaver Creek to offset overuse in any other sub-basin. 4. Northwest Kansas action. In a water-short year, Kansas’ compliance in Northwest Kansas will be measured on a two-year running average rather than a five-year running average, and its sub-basin uses will be limited. VI. Soil and Water Conservation Measures. (The United States was very concerned that conservation measures (such as stock ponds and terracing) were depleting water supply. This subsection is a compromise to address that concern.) A. Evaporation from “Non-federal reservoirs” (any reservoir over 15 AF capacity) will be included in compact accounting. B. The States and the United States will undertake a study to assess the impacts of stock ponds and terraces 1. A “Conservation Committee” will develop a plan for the study. a. through g. set out how the plan will be developed. 2. Once the plan is complete, the RRCA will approve it. The cost is not to exceed $1million, and 75% is to be provided by the United States. The States’ 25% share may be met with in-kind contributions. 3. Participating in the study does not commit any State to any action regarding ponds or terraces. 4. The study is contingent upon appropriations and upon participation by the United States. VII. Dispute Resolution. This section provides a procedure for attempting to resolve compact disputes, instead of immediately filing suit in the Supreme Court. A. Initial Submission to RRCA.
1. Any compact administration matter must first raised before the RRCA. 2. The RRCA must act unanimously, and each state has one vote. 3. If a state designates an issue as “fast-track” the RRCA must address it in 30 days. 4. Other “regular” issues will be addressed at the next regularly scheduled RRCA meeting. 5. Sets out procedures for scheduling meetings, including “fasttrack” meetings. 6. Any issue submitted to the RRCA must include a specific definition, supporting materials, and a proposed resolution schedule. 7. The RRCA will attempt to resolve any dispute, but if it cannot be resolved within a time frame agreed to by the States, the issues shall be submitted to non-binding arbitration. B. General Dispute Resolution Provisions 1. [Initiation of non-binding arbitration by written notice.] 2. [Selection of arbitrator.] 3. [Requirements for arbitrator; conflicts of interest.] 4. [Arbitrator must decide merits and propose a remedy.] 5. [Decision provided by mail or fax.] 6. [Within 30 days of decision, the parties must give written notice of acceptance or rejection of arbitrator’s decision.] 7. [Arbitrator’s decision may be introduced in subsequent proceeding but not binding.] 8. [Any state that goes through the above procedure has exhausted its administrative remedies.] C. Fast-track Dispute Resolution Schedule 1. – 4. [Specific scheduling provisions] D. Regular Dispute Resolution Schedule 1. – 4. [Specific scheduling provisions] VIII. Non-Severability of Agreement. If the Supreme Court refused to approve any part of the FSS, the entire FSS would be void. The Court has approved the settlement, so this provision is moot. IX. Entirety of Agreement. Self-explanatory – only what is in the FSS is part of the FSS. X. Retention of Jurisdiction by the Special Master. Provided that the Special Master retained jurisdiction to settle disputes during the completion of the RRCA Groundwater Model. The model has been completed, so this section is moot. Appendices: A. Proposed Consent Judgment.
B. Implementation Schedule. Sets out various dates for implementation of the FSS. The first compact accounting period is 2003-2007. C. Accounting Procedures and Reporting Requirements. This is a revision of the RRCA’s previous accounting procedures, and sets out the details of reporting, measuring, and calculating Compact compliance. D. Maps. E. Nebraska Laws, Rules, and Regulations re: Prohibition on Well Construction. F. Nebraska Calculation of Historic Consumptive Use. G. Kansas Laws, Rules, and Regulations re: Prohibition on Well Construction. H. Colorado Laws, Rules, and Regulations re: Prohibition on Well Construction. I. Confidentiality Agreement. J. RRCA Groundwater Model Materials. K. Harlan County Lake Operation Consensus Plan. A federal document that controls operation of the reservoir. L. Implementation of Additional Water Administration. An additional agreement between Nebraska and Kansas about lower basin administration. M. Alternative Water-Short Year Administration. An alternative method for Nebraska to comply with the Water-Short Year Administration requirements.