Water Lines: Water Forum at Colorado Mesa University Nov. 5-6; workshops Nov. 4

October 30, 2014

Colorado Mesa University

Colorado Mesa University


From the Grand Junction Free Press (Hannah Holm):

Declining water supplies and increasing demands have been in the news frequently over the past several years, and discussions both within Colorado and across state lines have centered on how to get supply and demand back in balance with as little trauma as possible.

That central challenge forms the backdrop of the fourth annual Upper Colorado River Basin Water Forum in CMU’s University Center on November 5-6. The theme of the forum is “Seeking a Resilient Future.”

Dozens of top water researchers, policy makers and managers from around Colorado and the other states that share the Colorado River will gather on campus to discuss scientific, management and policy elements of that challenge. Keynote addresses will be given by former Las Vegas water agency head Pat Mulroy and William Hasencamp, manager of Colorado River Resources for the Metropolitan Water District of Southern California. Pat Mulroy’s dinner address will be Nov. 5 at 6:15 p.m.

The forum will be preceded on Nov. 4 by half-day workshops on how to do augmentation plans under Colorado Water Law and the Colorado Data Sharing Network. Attorney Aaron Clay will offer the augmentation plan workshop. Lynn Padgett, coordinator of the Colorado Data Sharing Network, will provide training in how to use the network to store, manage and share water quality data.

The forum, workshops, and dinner with Pat Mulroy can all be registered for individually or together. Full details can be found at http://www.coloradomesa.edu/watercenter/UpperColoradoRiverBasinWaterForum.html.

NOV. 5 FORUM SESSIONS

On Nov. 5, the forum will feature a panel of top water policy makers from Wyoming, Utah, New Mexico and Colorado on state water planning efforts, as well as sessions on tribal water claims, potential impacts of climate change, agricultural irrigation efficiency, and technical and policy tools for adapting to water scarcity. Sessions will also take a look back at water history and discuss lessons learned in the first year since new nutrient monitoring regulations were adopted in Colorado.

NOV. 6 FORUM SESSIONS

On Nov. 6, panels will provide scientific and policy perspectives on a trio of cooperative efforts relating to water management in the Colorado River Basin; the Grand County enhancement and mitigation plan to address impacts from trans-mountain diversions; returning water to the Colorado River delta in Mexico; and managing Lakes Mead and Powell. The lunch keynote address will be provided by William Hasencamp, manager of Colorado River Resources for the Metropolitan Water District of Southern California.

The Upper Colorado River Basin Water Forum and related events are being organized by the Water Center at Colorado Mesa University.

More Colorado River Basin coverage here.


A River In Peril: Documenting Damage On The #RioGrande — FronterasDesk.org

October 28, 2014


From FronterasDesk.org (Lorne Matalon):

…one man wants to advance the conversation about watershed loss beyond platitudes.



He thinks prospective attempts to rescue this vital watershed are stymied by a lack of information, that the general public doesn’t consider the Rio Grande’s fate with the same intensity as it does other major rivers such as the Colorado River.

Colin McDonald calls it a long shot, but he wants to change that perception.
 
The lanky 33-year-old is on a trip funded by a fellowship from the University of Colorado. 
 


There are parts of the riverbed that are dry to the point some writers have dubbed it ‘rio sand.’



McDonald wants to gather information that he hopes might frame a substantive discussion on the near-term future of a river that provides water to millions of people in the United States and Mexico.

That data he’s collecting include taking water and soil samples and speaking with people on both sides of the river along the way.


The report concludes that a third of the Rio Grande’s water will be gone by the end of the century.

The U.S. and Mexico have squabbled about the Rio Grande’s water since the creation of the binational International Boundary and Water Commission, which had its genesis in the Treaty of Guadelupe Hidalgo in 1848.

And in the U.S., Texas is grumbling that New Mexico is diverting water it should be sending downstream. Texas has asked the U.S. Supreme Court to rule on the issue.

McDonald says climate change and drought are hurting the Rio Grande. But he believes the choices humans make about the river also cause damage.

“By far the biggest influence on this river are the decisions we make on how much water comes out and how it’s used,” he said while paddling at a furious pace near the end of day that began in the darkness of early morning and ended at sunset.

“The vast majority is taken out for agriculture, which is what the values were when those dams were built,” McDonald said.

He’s referring to dams such as Elephant Butte in New Mexico built in 1916.

“Endangered Species Act wasn’t even an issue,” he said referring to a controversial law
passed in 1973.

“Ecology wasn’t a word,” he added.



Since then, the population has grown exponentially and that reality has exacerbated the effects of prolonged drought.

Then there’s the Rio Grande’s status as a border.



He thinks immigration and border security are on the front burner in Washington and Mexico City. And that that preoccupation dilutes any urgency to rescue the Rio Grande.
 


Then he mentions the Hudson River in New York.

“You mess with the Hudson?” he asked rhetorically. “There are a lot of people that are upset. 
You mess with the Rio Grande? I mean, there’s still raw sewage being dumped into this river.”



Results of water samples he is taking are being sent to the EPA’s National Assessment Database. The river receives raw sewage from the U.S. and Mexico in certain spots.

On the Mexican side, Sergio Ramirez said he used to catch a lot of fish. But he says those days are long gone.

Ramirez is an alfalfa farmer. He says he doesn’t understand how decisions are made to hold or release water. 
 


“I have no idea who control the dams. I’m not sure which country holds authority on this water,” he said in Spanish.



He said he only knows he can’t make a decent living without steady water.
 


Allen Standen is a hydrologist who has studied the Rio Grande for years. He’s joined McDonald for part of the trip.

“We’ve been floating for probably three hours now. And with the exception of seeing some egrets, we haven’t seen virtually any mammals in this river. We haven’t seen any turtles or anything,” Standen said.

McDonald is also alarmed. And he’s worried that the issue’s been clouded by high-profile disputes that focus on the legal distinctions between ground and surface water. He says these distinctions don’t matter.

“If somebody sucks the aquifer dry, there won’t be water in the river. If someone sucks this river dry, there’ll be less water underground. It’s hard to model and to map. But the physical reality is that it’s the same water,” he said.

That water is the prize in a series of legal disputes. He believes until those local cases are resolved, there won’t an opportunity to craft a truly regional effort to save the Rio Grande.


More Rio Grande River Basin coverage here.


Republican compact agreement gives full credit for Nebraska’s river augmentation projects — The Kearney Hub

October 25, 2014

Republican River Basin by District

Republican River Basin by District


From The Kearney Hub:

An agreement approved Wednesday by the Republican River Compact Administration gives Nebraska 100 percent credit for groundwater that natural resources districts are using to augment river flows for compact compliance. It also ensures that water stored in Harlan County Reservoir for compliance won’t go to waste, according to a press release from Upper Republican NRD officials in Imperial.

They said it is hoped the agreement will lead to a similar deal for 2015 and to a new, positive working relationship between Kansas and Nebraska that benefits water users in both states.

“The resolution approved by the RRCA allows water now being held in Harlan County Reservoir to be released to Kansas during the 2015 irrigation season when it can be beneficially used, without compromising Nebraska’s ability to maintain compact compliance,” Nebraska Department of Natural Resources Deputy Director Jim Schneider said. He chaired the meeting in Denver. “The ability of the states to work together in resolving these issues is a significant step forward.”

There are two augmentation projects: Rock Creek Augmentation Project in Dundy County operated by the URNRD and Nebraska Cooperative Republican Platte Enhancement project in Lincoln County operated by the Upper, Middle and Lower Republican NRDs, along with the Twin Platte NRD.

Combined, the projects will add about 63,500 acre-feet of water to the Republican River system for 2014. Without the agreement, Nebraska’s credit would have been 37,000 a-f.

Nebraska officials have said that without the augmentation projects to ensure adequate flows into Kansas for compact compliance an alternative could be shutting down irrigation on more than 300,000 crop acres in Nebraska.

URNRD General Manager Jasper Fanning said Wednesday’s agreement “should provide Nebraskans assurance that water being added to streams in 2014 effectively prevented a shutdown of more than 300,000 irrigated acres in the basin this year and that we aren’t being required to do more than what we should under the agreement.”

He said it benefits water users in both Kansas and Nebraska…

The agreement approved by representatives of the compact states, Colorado, Nebraska and Kansas, means Kansas water users could get 20,000-25,000 a-f next year and the balance could be used by Nebraska Bostwick Irrigation District irrigators downstream from Harlan County Dam.

The agreement follows last week’s oral arguments before the U.S. Supreme Court on a special master’s recommendation on penalties for Nebraska’s overuse of compact water in 2005 and 2006…

A final decision by the court is expected by the end of June.

More Republican River Basin coverage here.


So how are we going to build these western water markets? — John Fleck

October 20, 2014

squeezingmoney
From InkStain (John Fleck):

Peter Culp, Robert Glennon and Gary Libecap have published an excellent new analysis of the potential for water markets to help us dig out of the western United States’ water mess:

Water trading can facilitate the reallocation of water to meet the demands of changing economies and growing populations. It can play a vital role in encouraging conservation and stewardship of water supplies in a way that can address cultural, social, and environmental priorities. It can facilitate building a structure for managing the ever-increasing risks of greater variability in water, including through methods such as insurance contracts, hedging tools, water banking, and other mechanisms. Deploying market tools in the allocation of water can help us to overcome the growing fragility and vulnerability of the water management institutions and infrastructure in the American West.

I agree, and their new work offers a great menu of policy options to move down this path. In brief (again quoting Culp et. al):

  • Reform legal rules that discourage water trading to enable short-term water transfers.
  • Create basic market institutions to facilitate trading of water.
  • Use market-driven risk mitigation strategies to enhance system reliability.
  • [B]etter regulate the use of groundwater by monitoring and limiting use to ensure sustainability, and by bringing groundwater under the umbrella of water trading opportunities.
  • To make water markets work at scale, strong federal leadership will be necessary to promote interstate and interagency cooperation in water management
  • This is great stuff. But how do we actually do any of them?

    Each of their first four bullet points is a staggeringly difficult task that will require enormous institutional capacity within the states to carry out. Consider California’s efforts to move on number four, for example. In the midst of the drought of record, with overwhelming problems caused by groundwater pumping, all California could manage was some feeble legislation aimed at just the first part – monitoring and limiting use to ensure sustainability at some future point in time sorta maybe. This is not for lack of smart scientists and policy people pointing out that the problem is deeper and requires stronger action. This rather reflects a shortcoming of the political system that has left us at with a sub-optimal equilibrium because of the ability of individual players, acting in their own short term interest, to block progress toward a more socially optimal solution…

    Having spent years watching the New Mexico legislature’s lack of institutional capacity to make even simple water rule changes, and watching California thrash about this year in the midst of genuine crisis, I think Culp and his colleagues are a tad optimistic to suggest this could be done “immediately”, but whatever. I’m all for optimism. And I’d file this under the critical category of “baby steps,” smaller and relatively easier things that can be done that provide shorter term benefits and the learning experience to help amass the necessary social capital to take on the harder challenges to come…

    Minute 319, the U.S.-Mexico agreement that, among other things, allowed last spring’s Colorado River Delta environmental pulse flow (and which Culp helped design) is a great “baby steps” example. It includes some of the elements Culp, Glennon and Libecap are asking for (albeit dressed up quite differently), but it was as much about learning how to do stuff as it was about actually doing stuff. It also demonstrates the importance of the role of the U.S. federal government.

    The important thing we need recognize here, I think, is that the investment in the social capital needed to do these things, an investment in what I’ve sometimes called the “institutional plumbing”, is every bit as real and important as the investment in pumps and canals and dams that make up the physical plumbing of water in the West.

    More water law coverage here.


    Argument analysis: State’s veto power brings Republican River modeling dispute to the Supreme Court

    October 17, 2014
    Republican River Basin by District

    Republican River Basin by District

    From the SCOTUSblog (Ryke Longest):

    On Tuesday, the Court heard arguments in an original jurisdiction dispute between Kansas, Colorado, and Nebraska over flows of a common river: the Republican River. After the states disputed the terms of their 1943 compact, they enacted a 2003 settlement stipulation. When the parties confronted a breach by Nebraska and a dispute over the water supply models they used to calculate Nebraska’s share, they reached an impasse. Kansas exercised its veto power, sending the dispute first to arbitration, then the Special Master and to the Supreme Court.

    At oral argument, Kansas disputed the special master’s proposal to alter the settlement stipulation’s water accounting procedures based on a claim of mistake. Kansas spent most of its argument focused on the accounting procedures changes suggested by the special master. Kansas argued that the special master exceeded the charge and upset a carefully negotiated compromise by siding with one party. Nebraska similarly focused on the accounting issue, but characterized the carefully negotiated bargain as the principle that imported water should not be counted, with the formula representing a tool for implementation as opposed to a term. Justices pushed back on both sides.

    Kansas argues Against the Five-Run Solution

    Kansas Solicitor General Stephen McAllister came out forcefully arguing that the settlement stipulation itself was a carefully crafted compromise. McAllister stated that all parties were aware that the accounting procedure was subject to uncertainty. Kansas’s primary objection to the special master’s report involves the special master’s recommendation to amend the accounting procedure to implement Nebraska’s proposed “five-run solution.”

    Justice Stephen Breyer pushed back on the argument against reformation, noting pointedly that, due to a mistake in the model, Nebraska’s use of “imported water” from sources outside the Republican River basin is counted against it under the settlement stipulation’s accounting procedures. Justice Breyer continued: “And nobody wanted that. That would be totally unfair. … So what do you suggest we do about the mistake? Nothing?”

    McAllister responded that they should send the case back and do nothing about the mistake, since it is not a mutual mistake. He emphasized that the intersection between the “five-run solution” and other issues were highly complicated and that Nebraska had gotten concessions in other areas of the settlement which kept the accounting mistake from being unfair. McAllister pointed out the effect of groundwater recharge credits as an example: “We gave Nebraska a high credit for groundwater recharge at a percentage much higher than Colorado and Kansas get and Nebraska crowed about that as a concession they got from Kansas that was worth 15 to $20 million annually, that’s Exhibit K, 133, in the record.”

    Justice Antonin Scalia asked McAllister about the role of deference in the case. McAllister said that there was no deference owed the special master and argued that the special master ignored trade-offs. McAllister asserted that the parties needed to renegotiate the entire set of trade-offs in order to be fair, rather than allowing the special master to set aside one set of trade-offs to the benefit of Nebraska and Colorado.

    Chief Justice John Roberts asked what Kansas thought of its chances if the matter were sent back to the Republican River Compact Administration, for resolution. (All disputes under the compact are run first though this body, consisting of one representative of each of the three states.) McAllister responded, “Twenty-some years ago, Kansas introduced a resolution in the RRCA that said, how about we all resolve that we will comply with the compact. Kansas voted yes, Colorado voted yes, and Nebraska voted no. So this goes back a long ways.” McAllister went on to explain that its proposed disgorgement remedies against Nebraska were necessary.

    The United States argues for the special master’s disgorgement remedy

    Assistant to the Solicitor General Ann O’Connell argued on behalf of the United States in support of the special master’s Report. O’Connell defended disgorgement by pointing out that disgorgement must be sufficient to discourage opportunistic breach, citing to the Restatement of Restitution and Unjust Enrichment. Justice Scalia asked whether the United States was overstating case law by citing the Restatement, telling her that “I don’t think the Restatement can change our law by just saying something by consensus of law professors.” O’Connell cited back to the classic case of Texas v. New Mexico to support her position. In response to questioning about the amount of disgorgement, O’Connell avoided taking any position at odds with the special master. Justice Kagan asserted that the $1.8 million figure recommended was less than what Nebraska had gained by its breach, arguing against an equitable balancing approach.

    Nebraska argues that Kansas’s veto requires the Court to break the impasse

    David Cookson, Nebraska’s chief deputy attorney general, argued that the bargain Nebraska struck with Kansas was that water imported from the Platte River Basin would not be counted towards Nebraska’s allocation of the Republican River. Justice Scalia questioned whether the deal was actually that broad, suggesting instead that Nebraska had agreed to a formula, not a broader principle.

    Scalia explained: “The parties knew that this formula would not be entirely accurate and they agreed to a fair price, that is, none of this water should be counted. But they said the way to figure out whether this water is coming in or not is this formula. Why shouldn’t they be held to that formula?”

    Cookson responded that the settlement specifically provided the parties with the ability to modify the accounting formulas. Nebraska asked the Republican River Compact Administration to modify the accounting procedures, to which Kansas objected exercising its veto powers. The issue was then sent to arbitration and finally to the special master who recommended the change to the formula, the “five-run solution.”

    Chief Justice Roberts asked Cookson if he agreed that the special master would have been powerless to change the formula if it had been part of the original compact as opposed to a later settlement. Cookson readily agreed that amending the compact would be beyond the power of the special master, citing Alabama v. North Carolina for support.

    Justice Kagan picked back up the thread of Justice Scalia’s question and extended it further. She asked Cookson what would happen if the parties had negotiated over three distinct formulas and had chosen one. Under that situation, she wanted to know, would it be right to continue to use the formula chosen going forward? Cookson pushed back that changing the accounting procedures is basic process under the agreement, and that prior to the current dispute, fourteen such formula changes have been approved by the three states. Cookson continued that this time is different, because Kansas has objected. He reasoned that the exercise of a veto can kick the dispute to the Supreme Court to break the impasse created by the veto process in the compact itself, likening the problem to the one faced in the Pecos River Compact, brought before the Court in Texas v. New Mexico.

    Chief Justice Roberts countered that the formula, as specific language in the contract, should control the general statement that imported water not be counted. Cookson argued that the imported water stipulation was the specific term and the formula was just the tool designed to deliver that deal.

    Cookson defended Nebraska’s response as not showing an intentional violation of either the compact or the stipulation. He argued that Nebraska could not have foreseen dust-bowl-like conditions. He argued that there is no need for an injunction or for disgorgement, tangling with Justice Scalia again on how those remedies interact.

    Kansas rebuts Nebraska’s argument that the formula was just a toolkit

    In rebuttal, McAllister returned to Justice Kagan’s line of questioning the choice of formulas for accounting made by the parties in the settlement stipulation. McAllister pointed out that the formula that Nebraska is seeking to have reformed was actually selected by Nebraska as its first choice during settlement negotiations. Citing the result in the boundary dispute of New Hampshire v. Maine, McAllister told the Court that it had given “New Hampshire the answer we think you should give Nebraska today, which is: ‘Sorry; you made the deal, and just because you now think you have a better way of doing it doesn’t mean we should rewrite the contract.’”

    In closing, Justice Sonia Sotomayor asked McAllister how much money is represented by the difference between the accounting preferred by Nebraska and that preferred by Kansas. McAllister answered with the amount of water in dispute – between 8,000 and 10,000 acre-feet. (An acre-foot is the amount of water needed to cover an acre of land to a depth of one foot, approximately 325,851 gallons.) When Sotomayor pressed for a dollar figure, McAllister told her that the special master had valued the water to Nebraska at $362 per acre-foot. On that note, the Court adjourned.

    Ryke Longest is the Director of the Environmental Law and Policy Clinic and a Clinical Professor of Law at the Duke University School of Law.

    More Republican River Basin coverage here.


    Supreme Court hears arguments on dispute in Republican Basin — The Imperial Republican

    October 16, 2014
    Republican River Basin by District

    Republican River Basin by District

    From The Imperial Republican (Russ Pankonin):

    The nine justices of the U.S. Supreme Court heard oral arguments from Kansas and Nebraska Tuesday on the 2013 findings of Special Master William Kayatta, Jr.

    Kayatta issued the ruling last year in an ongoing dispute dating to 2010 between the two states over Nebraska’s overuse of water in 2006.

    Kayatta recommended Nebraska pay Kansas $5.5 million—$3.7 million as the actual damages Kansas suffered by Nebraska’s overuse; and $1.8 million to Kansas for the gain Nebraska received by pumping extra water in 2006.

    He also said the accounting methods used to calculate water supplies in the Republican River Basin should be revised.

    Two primary issues
    The oral arguments by the states and questioning by the justices Tuesday centered on two main subjects:

  • Whether Kansas was entitled to a significant disgorgement or damage payment for Nebraska’s compact violation; and
  • Whether new accounting procedures for measuring imported water supplies into the basin, sought by Nebraska and recommended by Kayatta, should be allowed.
  • Kansas Solicitor General Stephen McCallister was the first to present arguments before the high court and set out by addressing the changes in the compact accounting. He said Kansas does not agree with Nebraska and the special master that the method for calculating imported water supply should be rewritten.

    “That agreement itself (2002 settlement) was a complex set of concessions and compromises,” he told the justices.

    The water model is an estimation at best of what’s going in the basin, he said. Parties were aware of the imported water phenomenon when the agreement was reached, he added. He said it wasn’t fair the water master focused solely on what Nebraska wanted changed while Kansas had issues that weren’t addressed. Justice Sonia Sotomayor said Kansas was invited to provide a better solution to the accounting issues but did not. McAllister said they were working on one but didn’t have time to develop it.

    If contract principles were applied to the disagreement, the remedy would be to rescind the compact settlement.

    “And I don’t think you want that,” Sotomayor said. McAllister agreed that none of the states would want that.

    So if rescinding the agreement isn’t possible, she said, then it falls back to reforming or revising the contract.

    She asked McCallister, “If Kansas couldn’t come up with an alternative, why shouldn’t the court just accept the special master’s recommendation?”

    McCallister said Nebraska’s change in accounting procedures came late in the process, as a counterclaim during arbitration.

    Justice Ruth Bader Ginsburg asked about the process when the states can’t agree.

    McAllister said there’s the option of non-binding arbitration, “which we all love and almost always works out our disputes.”

    If that doesn’t work, and the states feel strongly about it, they can request a special master, he said. “But again, I don’t think we’ll get there because the parties can and have negotiated successfully.”

    Sotomayor was skeptical of this. “But I thought you had gone through the alternatives,” with no resolution, she said.

    He said they brought this case to the high court because Kansas believed there was a compact violation by Nebraska that needed a remedy.

    Disgorgement remedy

    That remedy would be for the justices to grant Kansas a significant disgorgement payment from Nebraska to get their attention, McAllister said.

    Disgorgement is defined as the forced giving up of profits obtained by illegal or unethical acts.
    Of the $80 million Kansas sought in damages, they designated $60 million as profits or unjust enrichment Nebraska received by their overuse of water.

    Justice Antonin Scalia said disgorgement payments aren’t a normal contract remedy and require an intentional violation.

    McAllister said if Nebraska only has to pay Kansas $3.7 million, there’s little incentive for compliance, especially if a dispute can drag out eight years before any possibility of recovery.
    Justice Samuel Alito, Jr. said Kayatta found Nebraska didn’t intentionally violate the compact agreement.

    McAllister said the master did find that Nebraska “knowingly exposed Kansas to a risk of violation.”

    While they didn’t purposefully violate, they did violate it, McCallister said. “I think you have to say it’s more than negligent.”

    McCallister continued, “Nothing less than a substantial disgorgement award seems to really get their attention. And here it has gotten their attention and it has also gotten Colorado’s attention.”

    Justice Dept. sides with Kansas on disgorgement

    Ann O’Connell, Assistant to the Solicitor General, U.S. Department of Justice, said disgorgement should be an available remedy when a state violates an interstate water compact.

    She said the monetary remedy would “help to stabilize compacts and ensure the states are working vigorously to meet their compact obligations.”

    Justice Scalia reiterated the need for intentional violation in contract law and asked O’Connell for cases where the high court imposed disgorgement, even in the case of intentional violation. She could not cite any.

    She did cite a case between Texas and New Mexico where disgorgement could be a possible remedy. She continued, “It certainly left that door open.”

    “For an intentional violation?” Scalia questioned. “Yes,” she replied.

    “But we’ve never done it, have we?” Scalia asked. “No. And this is a novel . . .” she said before Scalia cut her off.

    At the end of her argument, O’Connell did go on record that the Justice Department does support the special master’s recommendation to revisit the compact accounting methods.
    Nebraska wants accounting change, not high damages

    Nebraska’s Chief Deputy Attorney General, David Cookson, was the final lawyer to present arguments. He stated the compact settlement specifically says the accounting will not count imported Republican River water and requested the court approve Kayatta’s recommendation for the accounting change.
    Scalia challenged him, saying the settlement included how such a water supply be determined—by a formula—and that was agreed to.

    Cookson countered, saying the deal Nebraska agreed to was not the formula.

    “The deal we made was not to count imported water,” he said.

    He said the final settlement made it clear that accounting procedures could be modified at any time through the appropriate process.

    Cookson said Nebraska followed that process, by going to the three-state compact administration. After Kansas objected, non-binding arbitration was sought.

    “The master agreed the mistake occurred, sent it back to the RRCA (Republican River Compact Administration) to develop a solution. This was all presented to Kansas in 2007,” Cookson told the justices.

    He said the accounting procedures are a technical appendix to the settlement and were not part of the settlement agreement.

    Scalia asked if the final settlement could be amended by mutual agreement.

    Cookson said no, because the three states, in the final settlement, put in a non-severability clause that they couldn’t change it. Cookson made the distinction that the accounting procedures could be changed and cited case law where the court allowed appendixes to state settlements to be changed. In addition, he said the accounting procedures appendix was not included as part of the compact settlement when it was approved by Congress.

    Chief Justice John G. Roberts, Jr., said the settlement is an agreement between two sovereign states.

    “The idea of a special master or this court changing the nature of that agreement is a pretty radical one,” he said.

    Cookson responded, “But we’re not changing that agreement. The agreement in the final settlement stipulation is do not count imported Platte River water.”

    When negotiating the settlement, Cookson asserted the parties knew the accounting procedures would change as things moved forward. He cited roughly 14 changes that have already been made and approved by the compact administrators. He said Kayatta’s recommendation doesn’t reform the compact settlement, just the technical appendix
    on accounting procedures.

    Disgorgement not justified

    On the issue of disgorgement, Cookson said Nebraska took exception to the award because the state did not deliberately violate the compact.

    Justice Elena Kagan said the special master and Justice Department Solicitor General characterized Nebraska as “a conscious wrong-doer, that you failed to act, refused to act in the face of known risk.”

    Cookson took exception, noting that Nebraska took control of consumptive use in 2002, while the settlement was still being negotiated. In addition, through 2006, the state reduced its pumping by 500,000 acre-feet, a 35 percent reduction. He said it was not possible for Nebraska to foresee its allocations would fall even below the record lows that occurred during the Dust Bowl of the 1930s. He urged justices to understand that allocations in the settlement were based on a 10-year period of the Dust Bowl. He said it was reasonable for Nebraska to believe allocations would never go below those of the Dust Bowl.

    “And yet in ‘05 and ‘06, our allocations significantly fell below the Dust Bowl,” he told the justices.

    He said Nebraska conceded it fell short of compliance in 2006 and offered to pay Kansas its actual damages.

    Since then, Cookson said Nebraska has remained in compliance “even in the driest condition now of record in the basin.”

    For these reasons, he said Kansas’ claim of unjust enrichment “as a means of disgorging gain to Nebraska” is not appropriate.

    In rebuttal to Cookson’s arguments, McAllister said the court should give Nebraska this answer on changing the accounting method: “Sorry; you made the deal, and just because you now think you have a better way of doing it, doesn’t mean we should rewrite the contract.”

    Nebraska delegation attends

    A Nebraska delegation including representatives from the Department of Natural Resources, the Attorney General’s office and attorneys and natural resource district officials closely associated with the case attended the oral arguments. Those attending from the Upper Republican NRD included Manager Jasper Fanning, Assistant Manager Nate Jenkins and Board Member Jason Kunkel.

    The justices will now review the case and render a decision which could occur sometime before the end of the year but no later than the end of June 2015.

    More Republican River Basin coverage here.


    Colorado Water Congress: Join us Nov. 19 for a day of fact-filled workshops

    October 15, 2014


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