Attorney General, State Engineer Call Republican River Arbitration Results Promising, Hope To Avoid Water Litigation

DENVER — Colorado Attorney General John Suthers announced today that an arbitrator appointed to help resolve a fight over the Republican River has sided with Colorado on a number of key issues in the state’s longstanding dispute with Nebraska.

In a non-binding decision, Arbitrator Karl Dreher rejected the vast majority of claims Nebraska brought against Colorado and Kansas concerning how the states calculate compact compliance along the Republican River.

Nebraska’s claims would have made Colorado’s efforts to come into compliance with the Republican River Compact more difficult. The sole issue on which the Arbitrator accepted Nebraska’s position will result in only a very small increase in Colorado’s calculated water use.

“I am pleased that the arbitrator has not proposed any radical reductions in the amount of water available for Colorado users,” Suthers said. “Whether the states accept the arbitrator’s decision or move forward with litigation, my office will work vigorously to protect Colorado’s share of its most precious resource.”

The non-binding arbitration process between Colorado, Kansas and Nebraska concluded Tuesday with the release of Dreher’s 73-page decision. The three states entered into the required non-binding arbitration eight months ago in an attempt to resolve various disputes regarding the Republican River Compact and Nebraska’s over-use of water under the compact.

Significantly, the arbitrator ruled that Kansas did not adequately prove its claims against Nebraska for monetary damages. Dreher recommended that Kansas receive only $10,000 in nominal damages from Nebraska. Kansas had originally demanded approximately $72 million in damages from Nebraska. Neither Kansas nor Nebraska claimed damages from Colorado.

The arbitrator also rejected the vast majority of the claims brought by Nebraska involving how the states calculate compact compliance using a complex computerized ground water model of the basin and a set of engineering principles.

The decision is not binding on Colorado, Kansas or Nebraska. The states have 30 days to notify each other if they will accept the arbitrator’s decision. If the states do not agree to accept the arbitrator’s decision, any of the states may take these issues to the U.S. Supreme Court.

Colorado officials have not determined whether they would accept the arbitrator’s recommendations. However, state Engineer Dick Wolfe said he is generally pleased with the arbitrator’s recommendations.

“I hope Nebraska and Kansas will carefully reconsider their claims after this ruling” Wolfe said. “I believe we can all work together to achieve mutually acceptable solutions that protect all our states’ rights under the compact without resorting to additional litigation.”

The Republican River is a 24,900 square-mile basin that begins on Colorado’s northeastern high plains and flows first into Kansas, then Nebraska and finally back into Kansas where it meets the Smoky Hill River to form the Kansas River. The basin’s 7,700 square miles within Colorado supports approximately 560,000 irrigated acres, primarily reliant on ground water pumping. Republican River water proportioned to Colorado supports a nearly $1 billion economy.

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