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Supreme Court sides with Kansas in river water use dispute

WASHINGTON  — The Supreme Court on Tuesday ordered Nebraska to pay Kansas $5.5 million in a long-running legal dispute over use of water from the Republican River.

The justices also gave Nebraska some of what it asked for and ordered changes to the formula for measuring water consumption. Nebraska argued that the formula was unfair.

Justice Elena Kagan, writing the majority opinion, said the court was adopting the recommendations of the independent expert the justices appointed to help resolve the states’ differences.

The dispute centers on a 1943 compact allocating 49 percent of the river’s water to Nebraska, 40 percent to Kansas and 11 percent to Colorado. Since 1999, Kansas has complained that Nebraska uses more than its fair share of water from the river, which originates in Colorado and runs mostly through Nebraska before ending in Kansas.

“Both remedies safeguard the compact; both insist that states live within its law,” Kagan wrote.

Nebraska Attorney General Doug Peterson’s office said it was pleased with the decision. The $5.5 million award is significantly less than the $80 million that Kansas had sought.

“We hope the decision will move the basin states forward and provide continued incentives toward shared solutions to our common problems,” the office said in a statement. “We are confident that payment of the court’s recommended award will finally allow us to leave the past where it belongs – in the past.”

Kansas Attorney General Derek Schmidt said the Supreme Court had never before ordered an upstream state to give up part of its economic gains in an interstate water dispute.

“Legally, this is a groundbreaking case that vindicates Kansas’ rights as a downstream state,” Schmidt said in a news release. “We brought this lawsuit to encourage our neighbors to live up to their obligations in future dry periods. I’m hopeful this strong and clear Supreme Court order will have that effect.”

Schmidt said the $5.5 million will be used to reimburse his office for the nearly $4.5 million in bringing the lawsuit. The remainder will go to the Legislature.

The outcome of the legal dispute has been of keen interest to farmers and rural legislators in Kansas.

State Rep. Travis Couture-Lovelady, a Palco Republican, said the payment award is useful but, “we can’t get the water back.”

“I know they’ve got their share of challenges, too,” Couture-Lovelady said. “But that’s the only real means of getting water into that part of northern Kansas.”

Six justices agreed on how much Nebraska should pay for taking more than its legal share of the river’s water in 2005 and 2006. Five signed off on changing the formula.

Justices Samuel Alito, Antonin Scalia and Clarence Thomas dissented on both counts, joined by Chief Justice John Roberts regarding the formula.