U.S. Sup. Ct.;
126, Orig.
In 1943, Congress approved the Republican River Compact, an agreement between Kansas, Nebraska, and Colorado to apportion the “virgin water originating in” the Republican River Basin. 57 Stat. 87. In 1998, Kansas filed an original action in this Court contending that Nebraska’s increased groundwater pumping was subject to regulation by the Compact to the extent that it depleted stream flow in the Basin. This Court agreed. Ensuing negotiations resulted in the 2002 Final Settlement Stipulation (Settlement), which established mechanisms to accurately measure water and promote compliance with the Compact. The Settlement identified the Accounting Procedures, a technical appendix, as the tool by which the States would measure stream flow depletion, and thus consumption, due to groundwater pumping. The Settlement also reaffirmed that “imported water”— that is, water brought into the Basin by human activity—would not count toward a State’s consumption. Again, the Accounting Procedures were to measure, so as to exclude, that water flow. In 2007, following the first post-Settlement accounting period, Kansas petitioned this Court for monetary and injunctive relief, claiming that Nebraska had substantially exceeded its water allocation. Nebraska responded that the Accounting Procedures improperly charged the State for using imported water and requested that the Accounting Procedures be modified accordingly. The Court appointed a Special Master. His report concludes that Nebraska “knowingly failed” to comply with the Compact, recommends that Nebraska disgorge a portion of its gains in addition to paying damages for Kansas’s loss, and recommends denying Kansas’s request for an injunction. In addition, the report recommends reforming the Accounting Procedures. The parties have filed exceptions.
