No. 126, Original

~upreme ~ourt o[ t~e f~niteb ~tate~

July 2010

STATE OF KANSAS,

STATE OF NEBRASKA

and

STATE OF COLORADO,

Plaintiff,

Defendants.

ON MOTION FOR LEAVE TO FILE

KANSAS’ REPLY

STEVE N. SIXAttorney General of Kansas

JOHN B. DRAPERCounsel of RecordMONTGOMERY ~ ANDREWS, P.A.Post Office Box 2307Santa Fe, New Mexico 87504-2307(505) 982-3873jdraper@montand.com

J UL 2 0 2~i0COCKLE LAW BRIEF PRINTING CO. (800) 225-6964

OR CALL COLLECT (402) 342-2831

Blank Page

TABLE OF CONTENTSPage

Table of Authorities ................................................ ii

Statement ...............................................................Summary of Argument ........................................... 3

Argument ................................................................ 4

I. Neither Nebraska Nor Colorado RequestsDenial of the Motion for Leave .................... 4

II. Nebraska’s Factual Assertions, Though Pre-mature, Provide Further Support for Kansas’Motion .......................................................... 5

III.

A. Nebraska’s Factual Assertions Are Pre-mature .................................................... 5

B. Nebraska’s Assertions Illustrate theNeed for the Court’s Intervention ......... 6

The Court’s Criteria for Exercise of Jur-isdiction Are Met .......................................... 10

A. Kansas’ Claim Is Serious, Dignifiedand Justiciable ....................................... 10

B. Further Prefiling Dispute ResolutionIs Not Required ..................................... 13

Conclusion ............................................................... 14

Appendix: U.S. Bureau of Reclamation State-ment Re Proposed IMP For Nebraska’s UpperRepublican NRD, June 10, 2010 ..............................A1

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TABLE OF AUTHORITIESPage

CASES

Arizona v. California, 373 U.S. 546 (1963) ................10

Kansas v. Colorado, 185 U.S. 125 (1902) ............... 6, 10Kansas v. Nebraska & Colorado, 525 U.S. 1101

(1999) .........................................................................2Kansas v. Nebraska & Colorado, 530 U.S. 1272

(2000) .........................................................................2Kansas v. Nebraska & Colorado, 538 U.S. 720

(2003) .........................................................................2Mississippi v. Louisiana, 506 U.S. 73 (1992) .............10Nebraska v. Wyoming, 325 U.S. 546 (1945) ...............10Nebraska v. Wyoming, 507 U.S. 584 (1993) ...............11Nebraska v. Wyoming, 515 U.S. 1 (1995) ................. 5, 6South Carolina v. North Carolina, 130 S.Ct.

854 (2010) ................................................................10Texas v. New Mexico, 462 U.S. 554 (1983) .................10United States v. Texas, 339 U.S. 707 (1950) ................5West Virginia ex rel. Dyer v. Sims, 341 U.S. 22

(1951) .........................................................................6Wyoming v. Colorado, 298 U.S. 573 (1936) ................10

Wyoming v. Colorado, 309 U.S. 572 (1940) ................11

STATUTES

Republican River Compact, 57 Stat. 86 (1943) .....passim

iii

TABLE OF AUTHORITIES - ContinuedPage

OTHER AUTHORITIES

First Report of the Special Master (Subject: Ne-braska’s Motion to Dismiss) (2000), Kansas v.Nebraska & Colorado, No. 126, Orig .......................2

Second Report of the Special Master (Subject:Final Settlement Stipulation) (2003), Kansasv. Nebraska & Colorado, No. 126, Orig .............. 1, 11

~iank Page

1

STATEMENT

Kansas filed its Motion for Leave to File Petition,Petition and Brief in Support ("Kansas’ Second Mo-tion for Leave" or "Kan. Br.") in May 2010. In July2010, Nebraska filed its Brief of the State of Ne-braska in Response to Kansas’ Motion for Leave toFile Petition ("Nebraska Brief" or "Neb. Br."). At thesame time, Colorado filed the State of Colorado’s Re-sponse to the State of Kansas’ Motion for Leave toFile Petition ("Colorado Brief" or "Colo. Br.").

The instant dispute has a long history. Kansascomplained for many years in the forum of the Re-publican River Compact Administration ("RRCA")that Nebraska’s groundwater pumping was causingviolations of the Republican River Compact ("Com-pact"). See Second Report of the Special Master (Sub-ject: Final Settlement Stipulation) 36 (2003), Kansasv. Nebraska & Colorado, No. 126, Orig. ("As early asthe RRCA’s 1985 meeting, the Kansas member of theRRCA moved that the Engineering Committee ’re-view methods of computing virgin water supply andconsumptive use with special attention to groundwater depletions including the impact of pumping theOgallala Aquifer"). Kansas also pursued negotiationsand mediation of the dispute, to no avail. Id., at 18.

In May 1998, Kansas filed in this Court itsMotion for Leave to File Bill of Complaint, Bill ofComplaint, and Brief in Support of Motion for Leaveto File Bill of Complaint, seeking enforcement of theCompact against Nebraska. At the invitation of the

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Court, the United States filed a Brief as amicus curiaerecommending that the Court grant Kansas’ motion.Brief for the United States as Amicus Curiae on Mo-tion for Leave to File Bill of Complaint (Dec. 1998),Kansas v. Nebraska & Colorado, No. 126, Orig. TheCourt granted Kansas’ motion. Kansas v. Nebraska &Colorado, 525 U.S. 1101 (1999). The primary cause ofthe alleged violation of the Compact was groundwaterpumping in Nebraska. Nebraska denied that effectsof groundwater pumping on the Republican Riverneeded to be accounted for under the Compact, butthe Court’s Special Master ruled otherwise. First Re-port of the Special Master (Subject: Nebraska’s Mo-tion to Dismiss) 1, 44-45 (2000), Kansas v. Nebraska& Colorado, No. 126, Orig. ("The Republican RiverCompact restricts a compacting State’s consumptionof groundwater to the extent the consumptiondepletes stream flow in the Republican River Basinand, therefore, Nebraska’s Motion to Dismiss shouldbe denied"). Based on Special Master McKusick’s rec-ommendation, the Court denied Nebraska’s Motion toDismiss. Kansas v. Nebraska & Colorado, 530 U.S.1272 (2OO0).

After the Court’s denial of Nebraska’s Motion toDismiss, and subsequent rulings by Special MasterMcKusick, the States entered into settlement negotia-tions, which resulted in the Final Settlement Stipu-lation ("FSS"). The FSS, in turn, was approved by theCourt in its Decree of May 19, 2003 ("Decree").Kansas v. Nebraska & Colorado, 538 U.S. 720 (2003),reprinted in Kan. Br., at B1. Under the FSS, Kansas

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waived its damages claims for Compact violationsprior to December 15, 2002. FSS, § I.C, reprinted inKan. Br., at B3, B8.

SUMMARY OF ARGUMENT

All three States subject to the Republican RiverCompact have upstream compliance responsibilities.Kansas is in part upstream of Nebraska. Nebraska isin part upstream of Kansas. Colorado is upstream ofboth other States. Kansas has maintained compliancewith the Compact and the Court’s Decree enforcingthe Compact. Nebraska, by its own admission, hasnot.

Nebraska disputes the amount of its violationand the retrospective and prospective remedies pro-posed by Kansas. Nebraska also makes bold asser-tions about its latest actions to ensure futurecompliance, but these statements are contrary torecent statements of the U.S. Bureau of Reclamation.These are disputes that cannot be resolved except inthe forum of this Court’s original jurisdiction. TheCourt’s specific criteria for exercise of that juris-diction have been met, not least by the fact that theCourt has already exercised jurisdiction in this case.The Nebraska Brief only reinforces Kansas’ positionthat there is a serious problem regarding compliancewith the Court’s Decree in the Republican River

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Basin. The Court should grant Kansas leave to file itsPetition so that the Court’s Decree can be enforced.

ARGUMENT

I. Neither Nebraska Nor Colorado RequestsDenial of the Motion for LeaveNebraska does not deny that it violated the

Decree of the Court. Rather, Nebraska takes issueonly with the amount of the violation, suggesting thatit might be half of the total acre-feet indicated byKansas as being Nebraska’s position. Neb. Br. 19.1 Infact, Nebraska encourages the Court to take the case,provided that Nebraska’s and Colorado’s defensiveissues are included. Id., at 18 ("Nebraska submits theCourt should grant Kansas’ motion, but for thepurposes of addressing all issues presented to Arbi-trator Dreher below and currently before ArbitratorPagel" (emphasis Nebraska’s)). While Nebraska iscorrect that Kansas’ Motion for Leave should begranted, it is by no means clear that Nebraska’sadditional issues are proper subjects for the Court’sconsideration. The propriety of including Nebraska’sadditional issues would normally be resolved at a

1 This position is inconsistent with the position Nebraskatook in the arbitration of this issue, where Nebraska’s expertsquantified the total overuse in 2005 and 2006 as being 71,475acre-feet. See Nebraska Arbitration Exh. 8, Table 2-2, at 5("Nebraska’s Compliance During Water-Short Year Administra-tion, RRCA Accounting Procedures Table 5C" showing a totaloveruse for 2005 and 2006 of 71,475 acre-feet).

later pleading stagegranted.

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of the case, if the Motion is

Colorado takes no position on Kansas’ Motion.Colo. Br. 8.

II. Nebraska’s Factual Assertions, Though Pre-mature, Provide Further Support for Kansas’Motion

A. Nebraska’s Factual Assertions Are Pre-mature

Nebraska asks the Court to accept its view of dis-puted facts as a basis for challenging the sufficiencyof Kansas’ Motion for Leave to File. See generallyNeb. Br. 19-23. But the Court has traditionallyallowed for full development of the record beforemaking its determination of the nature and scope ofobligations between sovereigns in the exercise of itsoriginal jurisdiction. See, e.g., United States v. Texas,339 U.S. 707, 715 (1950). Thus, the Court shouldresist Nebraska’s premature invitation to decide therelative strength of the evidence at this stage.

The purpose of the Motion for Leave is to deter-mine whether Kansas should be given a chance toprove that a violation of the Decree occurred. TheCourt’s decision in Nebraska v. Wyoming, 515 U.S. 1(1995) is illustrative. In that case, the Court rejectedthe State of Wyoming’s factually based objections indetermining whether Nebraska would be allowed toenlarge the scope of its claims against Wyoming in apending interstate water case, stating: "at this stage

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we certainly have no basis for judging Nebraska’sproof, and no justification for denying Nebraska thechance to prove what it can." Id., at 13; see alsoKansas v. Colorado, 185 U.S. 125, 147 (1902) (over-ruling demurrer to the bill of complaint on thegrounds that Kansas should be allowed to discoverfacts necessary to prove its case). In sum, the exis-tence of disputed facts is simply an additional reasonthat the Court should grant Kansas’ Motion so thatproper trial of such facts can be conducted with theassistance of a Special Master. Cf. West Virginia exrel. Dyer v. Sims, 341 U.S. 22, 28 (1951) ("A Statecannot be its own ultimate judge in a controversywith a sister State").

B. Nebraska’s Assertions Illustrate the Needfor the Court’s Intervention

Nebraska includes as part of its Brief a tableshowing Nebraska’s Allocations, Computed BeneficialConsumptive Use, Imported Water Supply Credit andthe measure of Compact compliance (allocation -(CBCU - IWS Credit)). See Neb. Br., at App. 21. Ne-braska indicates that Nebraska’s 2009 consumptionof water ("Computed Beneficial Consumptive Use" or"CBCU") has increased beyond any level reported inthe table for previous years. According to Nebraska,its 2009 consumption is 288,200 acre-feet. AlthoughKansas has not had an opportunity to determinewhether it agrees with these figures, Nebraska’s fig-ures show that from 2008 to 2009, Nebraska’s con-sumptive use increased by some 15%. Meanwhile, the

same table shows that Nebraska’s allocation underthe Decree decreased from 2008 to 2009 by some 12%.This table also shows the existence of an additionalCompact violation under the five-year test for theyears 2003-2007, with an average annual overuse of20,532 acre-feet per year, as quantified by Nebraska.These are all indications of a serious problem thathas not been remedied, and, in fact, is getting worse.Moreover, these latest results are consistent with thecontinuing increase in depletions by Nebraskagroundwater pumping shown on Figure 7, page C20of Kansas’ Second Motion for Leave.

Kansas disagrees with many of the factual alle-gations made by Nebraska in the Nebraska Brief. Thecurrent stage of the proceeding is not the time toresolve such facts, however, as explained above.Nevertheless, Kansas expressly denies the NebraskaBrief’s factual allegations. Kansas will limit itself toa discussion of a few of Nebraska’s allegations, asexamples of why the Court should not rely on them.

At the outset of its Brief, Nebraska refers to"Kansas’ persistent efforts to prevent an accurateaccounting of Republican River waters." Neb. Br. 1.Nebraska is apparently referring to Kansas’ opposi-tion to Nebraska’s proposal to change the Compactaccounting approved in the Decree. See id., at 24-25.This is the very accounting that has shown Nebraskato be in violation of the Decree. It is not a viableresponse to a claim of violation to propose that thestandard violated should be changed. The accounting

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complained of by Nebraska was duly agreed to byNebraska and the other States and approved by theCourt. It is particularly inaccurate for Nebraska todescribe Kansas’ opposition as "persistent efforts toprevent an accurate accounting." Further, whatNebraska refers to as an "error" is not considered anerror by Kansas, nor did the Arbitrator find any such"error." See Neb. Br., at App. 83 - App. 84, ~]~ 2-5(Arbitrator’s Conclusions).~

Nebraska makes much of its efforts to remedy itsviolations of the Decree in an attempt to downplaythe seriousness and dignity of Kansas’ claim. SeeNeb. Br. 3-7. For example, Nebraska relies on itsIntegrated Management Plans ("IMPs" or "Plans") toassert that Kansas’ requests for prospective relief arenonjusticiable. Neb. Br. 5-7, 14-15, 20-23. The IMPsare plans purportedly developed by Nebraska as aremedy for its violations of the Decree. See, id., at 3-7. The first IMPs became effective in 2005 and wererevised in 2007 and 2008. Id., at 5-6. The IMPs areagain under revision. Id., at 22-23. Nebraska’s con-tinual revision of the IMPs is an implicit admissionthat the IMPs have not been sufficient to ensure Ne-braska’s compliance with the Compact. As Nebraska

2 The Appendix to the Nebraska Brief contains excerpts ofthe uncorrected Arbitrator’s Final Decision. The complete Arbi-trator’s Final Decision, as corrected by the Arbitrator, is avail-able at http://www.ksda.gov/includes/document_center/interstate_water_issues/RRC_Docs/FinalArbitrationDecision.pdf.

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admits, it used more than its Compact allocation in2005 and 2006 despite the IMPs. See Neb. Br. 19, Fig.3, at App. 21. Kansas’ Motion for Leave is based onthis violation.

Nebraska now asserts that it is developing new"third generation" IMPs. Id., at 22-23. ThroughoutNebraska’s drafting and redrafting of the IMPs, theUnited States Bureau of Reclamation has providedcomments on the drafts, stating most recently, e.g.,that the currently proposed "third-generation" IMPfor the Upper Republican Natural Resource District("Upper Republican NRD") "is inadequate." U.S.Bureau of Reclamation Statement Re Proposed IMPFor Nebraska’s Upper Republican NRD, June 10,2010, reprinted as the Appendix to this Brief, at A1.

Nebraska also points to its claimed retirement ofirrigated acreage. Neb. Br. 6-7. This claim is mislead-ing at best given the fact that irrigated acreage in thebasin in Nebraska has actually increased since theFSS was signed in late 2002. See Kan. Br., App. C toPetition, Fig. 5, at C18.

Given the demonstrated inadequacy of Nebraska’sIMPs and other actions it has taken, Nebraska’s alle-gations do not undermine Kansas’ claim, but insteadserve to reinforce the seriousness and dignity of thatclaim, providing further support for the granting ofKansas’ Motion for Leave.

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III. The Court’s Criteria for Exercise of Juris-diction Are Met

The Court’s consideration of whether to exerciseits original jurisdiction in any case depends on twocriteria. First, the Court considers the nature of thecomplaining State’s interest, with a focus on theseriousness and dignity of the claim. Mississippi v.Louisiana, 506 U.S. 73, 77 (1992). Second, the Courtconsiders the availability of an alternative forum.Ibid.; see also South Carolina v. North Carolina, 130S. Ct. 854, 869 (2010). As demonstrated in Kansas’Second Motion for Leave, Kansas’ claim thatNebraska violated this Court’s decree meets this test.See Kan. Br., Brief in Support 13-24.

A. Kansas’ Claim Is Serious, Dignified andJusticiable

Kansas has previously explained the seriousnessand dignity of its claim. Id., at 19-24. Simply put,Kansas is claiming the violation of a decree of theCourt. It is also claiming the violation of a compactapproved by Congress. In claiming that Nebraska isdepriving Kansas of its lawful share of the water ofan interstate stream, Kansas asserts a substantialsovereign interest that falls squarely within thetraditional scope of this Court’s original jurisdiction.See, e.g., Texas v. New Mexico, 462 U.S. 554, 567(1983); Arizona v. California, 373 U.S. 546 (1963);Nebraska v. Wyoming, 325 U.S. 546 (1945); Wyomingv. Colorado, 298 U.S. 573 (1936); Kansas v. Colorado,185 U.S. 125 (1902).

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Nebraska asserts that Kansas’ claim, standingalone, does not merit exercise of this Court’s juris-diction because, in part, "Kansas’ damage claim is deminimis." Neb. Br. 20. However, in an interstate suitseeking enforcement of an established apportionmentof interstate water, injury need not be pled at all. SeeNebraska v. Wyoming, 507 U.S. 584, 592 (1993) ("Inan enforcement action, the plaintiff need not showinjury"); Second Report of the Special Master (Sub-ject: Final Settlement Stipulation), at D1-19, Kansas v.Nebraska & Colorado, No. 126, Orig. (2003). A similarclaim was rejected by this Court in Wyoming v.Colorado, 309 U.S. 572 (1940). In that case, Wyomingsought relief for violation of the Court’s decree, whichhad apportioned an interstate stream by limitingwithdrawals in Colorado. Id., at 573. After Wyomingwas granted leave to file its petition, id., at 574, theCourt rejected Colorado’s defense that Wyoming hadnot been injured, explaining that the Court’s decreehad "fixed the amount of water" to which each statewas entitled. Id., at 581. Nebraska in this case, likeColorado in Wyoming v. Colorado,

"is bound by the decree not to permit agreater withdrawal and if she does so, sheviolates the decree and is not entitled toraise any question as to injury to [Kansas]when [Kansas] insists upon her adjudicatedrights. If nothing further were shown, itwould be [the Court’s] duty to grant the pe-tition of [Kansas] and to adjudge [Nebraska]in contempt of her violation of the decree."Ibid.

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Thus, Nebraska’s unsupported assertion that Kansas’damages are de minimis has no bearing on whetherthe Court should grant Kansas’ Motion for Leave.

The foregoing notwithstanding, Kansas rejectsthe notion that its damages are de minimis. Nebraskaadmits that its average overuse in the two years 2005and 2006 was some 35,000 acre-feet per year. To givesome perspective, the Supreme Court Courtroom hasa volume of 31/3 acre-feet. Nebraska’s admitted over-use thus represents some 10,000 volumes of theCourtroom per year. Further comparisons showing themagnitude of Nebraska’s violation were includedin Kansas’ Second Motion for Leave. See Kan. Br.,Brief in Support 15, 21-22; id., Petition, ~] 20, at 10("Nebraska’s violation is more than the annualconsumptive use of a city of a half million people").

Finally, Nebraska asserts that Kansas’ claim isnot justiciable, being either moot or unripe. Neb. Br.21-22. The basis for Nebraska’s argument is that theparticular version of the IMPs, which are assertedas a defense by Nebraska, has changed. Yet thejusticiability of Kansas’ claim and whether it satisfiesthe Court’s criteria can hardly depend upon whichversion of the IMPs might be current at any giventime. Kansas’ claim is not based on Nebraska’s IMPs.Nebraska’s argument confuses the question of a pastviolation with the question of a future remedy. Issuesregarding the adequacy of Nebraska’s current andfuture IMPs to ensure future compliance may berelevant to the determination of the proper remedy

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for Nebraska’s violation. However, that determinationcan only be made in the context of the case itself,after the Court has made the threshold determinationof whether there is a cognizable claim that is properlybefore it.

B. Further Prefiling Dispute Resolution IsNot Required

The Decree and underlying FSS require a partyto follow a certain process before bringing a disputebefore this Court. A dispute must first be submittedto the RRCA. FSS, § VII.A.1, reprinted in Kan. Br.,App. B to Petition, at B48. If the RRCA is unable toresolve the dispute, the FSS requires the parties tosubmit to non-binding arbitration. Id., § VII.A.7. Aparty is deemed to have exhausted its administrativeremedies with regard to any disputed issue that hasbeen submitted to the RRCA and to arbitration. Id.,§ VII.A.8. Kansas has submitted to the RRCA and toarbitration all of the issues raised in its Motion. Kan.Br., Brief in Support 12; Neb. Br. 10; Colo. Br. 5-6.Kansas has therefore exhausted its administrativeremedies, and no forum other than the Court’s origi-nal jurisdiction remains. Colorado recognizes thatKansas has complied with the dispute resolution re-quirements of the FSS: "the dispute resolutionprocess is no longer an available forum to resolvethese issues." Colo. Br. 8. No further prefiling disputeresolution is required.

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CONCLUSION

Kansas’ Motion for Leave to File Petition shouldbe granted.

Respectfully submitted,

STEVE N. SIXAttorney General of KansasJOHN B. DRAPERCounsel of RecordMONTGOMERY ~ ANDREWS, P.A.Post Office Box 2307Santa Fe, New Mexico 87504-2307(505) 982-3873jdraper@montand.com

July 2010

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Statement of the Bureau of ReclamationNebraska-Kansas Area Office

Aaron M. Thompson, Area Manager

Regarding Proposed IntegratedManagement Plan for the Upper

Republican Natural Resources District

June 10, 2010

INTRODUCTION

The Bureau of Reclamation (Reclamation) recognizesthe appropriate role of the State of Nebraska toestablish and enforce water policy. The current Statewater policy of developing and implementing Inte-grated Management Plans (IMP) is a step in the rightdirection. However, Reclamation is concerned that theIMP proposed by the State and the Upper RepublicanNatural Resource District (URNRD) is inadequate. Itfails to protect Reclamation’s senior water rights fromdirect and substantial groundwater development ofthe hydrologically connected waters of the RepublicanRiver Basin (Basin) that occurred following approvalof the Compact and subsequent investment of infra-structure.

Reclamation contends the State water policy that hasevolved following approval of the Republican RiverCompact (Compact) ignores the physical reality of thehydrological connection between surface and ground-water sources. The policy separation between surfaceand ground water has lead to an overdevelopment ofthe finite water resource in the Republican River

Basin. As a result, the investment of the UnitedStates in the development of infrastructure is injeopardy. The irrigation, recreation, and fish andwildlife benefits are currently below their potential asenvisioned and authorized by Congress. The tax-payers of the United States have an expectation thattheir investment will be protected, which includeswater rights held by the United States.

Reclamation offers to assist both the State andURNRD in developing a long term solution to theissue of Compact compliance that recognizes the hy-drologic connection between surface and ground-water, and protects senior water rights. A potentialoption is the establishment of a water market asexists in other Reclamation states, such as the systemthat presently exists in the South Platte River Basinin Colorado.

COMPACT HISTORYDuring the late 1930s when Reclamation was initiallyinvestigating the water projects in the Basin, we rec-ognized the first step to Federal water development wasnegotiation of a compact between Nebraska, Kansas,and Colorado allocating water between the states. Thiswas needed to prevent conflict between the states and toinsure long term project feasibility to protect thelarge Federal investment. Reclamation requested thestates enter into negotiations to complete this neces-sary step. Reclamation stated in a 1940 Recon-naissance Report on the Basin (Project InvestigationReport No. 41): "To avoid expensive litigation as a

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result of possible conflicting uses of water in thevarious states, further developments for irrigationshould be preceded by a three-state compact or simi-lar agreement on use of water." This report was one ofmany sources of information used by the three statesto develop the Compact. Reclamation also assistedthe states in the Compact negotiations by preparinghydrology analysis for the Basin and sharing Recla-mation’s preliminary water development plans witheach of the states. The first attempt to adopt theCompact by the states was vetoed by PresidentRoosevelt because the United States did not partici-pate in the negotiations of the Compact. After par-ticipation by the United States, the Compact wasrenegotiated and revised to include Articles 10 and11. The renegotiated Compact was signed by thestates and the representative of the United States onDecember 31, 1942. Ratification of the Compact bythe States and the U.S. Congress followed in 1943.

After the Compact was finalized, this water allocationbecame the framework for the final planning anddesign of a system of Federal reservoir and irrigationprojects that would assist each of the states indeveloping their allocated share of the RepublicanRiver. Reclamation believed by acquiring necessarystate water rights and designing its projects withineach state’s allocated share of the water, the watersupply for these Federal projects would be protectedagainst future water development. Between the late1940s and 1960s eight Federal dams and reservoirswere constructed in the Basin. Reclamation enteredinto repayment or water service contracts with each

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of its irrigation districts in the Basin to provide forrepayment of the irrigation portion of constructionand their associated operation, maintenance, andreplacement (OM&R) costs for these projects. Thiswas done with the expectation that the irrigationdistricts would be able to repay their share of theproject costs, protecting the invested interest of thetaxpayers of the United States.

COMPACT ACCOUNTING

From 2003 through 2006, Nebraska’s allocation aver-aged 205,000 acre-feet and Nebraska’s use averaged250,000 acre-feet, each year resulting in computedbeneficial consumptive use exceeding Nebraska’sallocation. During this period Nebraska ground waterpumping caused nearly 80% of the ground waterdepletions to the streamflows in the basin. The fol-lowing graph shows Nebraska’s ground water andsurface water consumptive use since 1995. Statisticaltrend lines have been added to the graph to show howthese consumptive uses have changed over time.Ground water consumptive use has gradually in-creased over time, while there has been a sharp de-cline in surface water consumptive use.

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Consuptive Use Acre-Feet

1995

1996

1997

1999

2000

2001

2002

2003

2004

2005

2006

2007

2008

2009

0

0

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Reclamation testified at each of the IMP hearingsthat surface water supplies in the Basin began todecline significantly in the late 1960s, right at thetime ground water development in the Basin wasexpanding at a rapid rate. The use of surface water isnot the reason Nebraska has failed to be in com-pliance with the Compact. Surface water use hasdecreased over time. Because of the current level ofground water use in the basin, ground water deple-tions have resulted in significant Compact compliancedeficits for Nebraska. This draft IMP continues toallow for the unreasonable use of surface watersupplies to make up for deficits caused by years ofground water overuse. In water-short years, surfacewater users experience significant water shortagesbecause of imposed reductions in surface watersupplies while ground water users have the capabilityto pump sufficient ground water to meet most of theirirrigation demands. As a result, ground water deple-tions to surface flows have continued to graduallyincrease while surface water depletions continue todecline.

2009 ARBITRATION

Reclamation testified at the Republican River Com-pact Arbitration hearings in April 2009 and statedour concern that without additional limits and con-trols on ground water use, the surface water suppliesin the Basin will continue to decline making it moredifficult for Nebraska to meet Compact compliance inthe long term. Reclamation concurs with Arbitrator

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Dreher’s decision that " ... Nebraska’s current IMPsare inadequate to ensure compliance with the Com-pact during prolonged dry years" and "Nebraska andthe NRDs should make further reductions in con-sumptive ground water withdrawals beyond what’srequired in the current IMPs." It is our position thatground water consumptive use must be reduced to alevel that will allow base flows to recover to an extentthat will allow Nebraska to consistently comply withthe Compact in both the near term and long term.This is the only way Nebraska can meet the IMP goalof "sustaining a balance between water uses andwater supplies ... " Likewise, Arbitrator Drehernoted in his Final Decision that "Nebraska’s problemin complying with the Compact is groundwaterCBCU, not surface water CBCU." As long as groundwater depletions continue to increase, there will beless and less surface water supplies available to offsetthe deficits caused from ground water pumping.

CONCERNS AND EXPECTATIONS

Reclamation is very concerned about Nebraska’s fail-ure to meet Compact compliance since complianceaccounting was reinitiated in 2003. Reclamation iseven more concerned about the continuing depletionof inflows to Federal reservoirs. Federal projects wereconstructed based on the concept that project surfacewater rights would be protected. The trend of declin-ing ground water levels will result in continuingstream flow depletions. This draft IMP fails to ad-dress impacts from past ground water use and future

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ground water declines that will cause direct andsubstantial depletions in stream flows.

Reduced surface water supplies have caused Federalproject water deliveries, throughout the Basin, to de-cline during the last 40 years. Ground water pumpingin the URNRD directly affects the water supply forseveral canals associated with the Federal projects inthe Basin. A decline of return flows from these canalshas reduced supplies to downstream Federal projectsas well. According to NE Stat. 46-715, the IMP shouldinclude clear goals and objectives with the purpose ofsustaining the balance between water uses and watersupplies for both the near term and the long term.Reclamation is very concerned with this balance inthe Basin as it relates to surface water supplies forexisting surface water uses.

Reclamation expects the water rights associated withthe authorized Federal multipurpose projects in theBasin be protected by the State of Nebraska and theNRDs. Reclamation expects to continue to operate theFederal projects for their authorized purposes. Reduc-ing ground water depletions is the only way togradually allow the streamflows to recover, provideequity among water users, and assist Nebraska inachieving long term Compact compliance.

SPECIFIC COMMENTSGoal 4 - "protect ground water and surface waterusers ... from stream flow depletions caused bysurface water or ground water uses begun after

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the date the river basin was designated as fullyappropriated". This goal is not being met and willnot be met by the proposed IMP. Records indicatedepletions from ground water have increasedsince 2004 and ground water levels are continu-ing to decline.

2. Goal 5 - "reserve any streamflow available fromregulation, incentive programs, and purchased orleased surface water required to maintain com-pact compliance from any use that would negatethe benefit of such regulations or programs ...Since any water that appears as streamflow issubject to storage and surface water use in accor-dance with Nebraska state statues, how does thestate intend to meet this goal?

3. The IMP requires a 20% reduction in pumping toa level no greater than 425,000 acre-feet but thenallows higher pumping above 425,000 acre-feet inyears with lower than average precipitation.Years with below average precipitation are also"water short" years. Allowing higher pumpinglevels in these years works against complianceand equity between surface water users andground water users.

4. The URNRD’s current pumping volumes are neara 20% reduction from the ’98-’02 baseline vol-umes discussed in the IMP. The ’98-’02 baselineis not representative of average pumping as thiswas a dry period when pumping rates were high.Reductions need to be higher to improve surfacewater supplies and achieve long-term compli-ance. Reducing allocations by more than 20% willprovide a cushion to offset deficits in dry or water

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short years. This would reduce the need for otherusers to unfairly make up the deficit.

5. The proposed IMP does not address improvinglong-term surface water flows nor make upexisting deficits. Improved surface water flowswill be needed to achieve long-term compliance.

6. The Surface Water Controls as described insection VII.F are vague and do not describe theintent of "Compact Call."

7. The "Compact Call Year" is not defined in thedraft IMP. Also a number of the terms under theCompact Call Year evaluation are not clear.

8. The IMP indicates that a "Compact Call" will beplaced on the river at Guide Rock or Hardy on allnatural flow and storage permits. This call wouldappear to prevent storing water in HarlanCounty Lake decreasing the water supply for theBostwick Division. This call would also appear toprevent the diversion of natural flow into theCourtland Canal. Is this the intent of the Com-pact Call? This could also increase the number ofyears that are designated as "water-short years"under the terms of the Final Settlement Stipu-lation (FSS).

9. Closing all natural flow rights and storage rightswhile not curtailing all ground water wells hy-drologically connected to the streams (as definedby the FSS) is discriminatory and does notprovide equity between water users (a primarygoal of the IMP).

10. The IMP states that a "Compact Call" is on untilsuch time that administration is no longer

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needed. The IMP is unclear whether any groundwater use will occur in the Rapid Response Areaduring a "Compact Call Year". Will ground wateruse remain off during the entire year when a"Compact Call" has been placed?

The IMP does not define "allowable surface waterdepletions." A better understanding of the surfacewater user’s share of allowable depletions isneeded. Surface water supplies are already re-duced during "water short" years. Ground waterconsumptive use has remained the same or in-creased and, under the IMP a higher volume ofground water pumping is allowed in years withbelow average precipitation. This is completelycontrary to providing equity between surfacewater uses and ground water users.

CONCLUSION

Reclamation is supportive with Nebraska’s effort tocomply with the Compact. However, a plan thatessentially curtails all surface water use and con-tinues to allow ground water use and ground watermining to occur in the Basin is unreasonable and notacceptable. This is not consistent with NebraskaStatute 46-715 as surface water users are not beingprovided equal protection among all water users.Reclamation views our Federal water rights as prop-erty rights that must be provided equal protection.The fiscal investment of the taxpayers of the UnitedStates must also be protected. In doing so, the IMPsshould not ignore the physical reality that groundwater and surface water are hydrologically connected

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and the administration of the water supply in thebasin should be consistent and equitable for all waterusers.

Additionally, the proposed revisions to the IMP do notallow Reclamation to operate as authorized by theU.S. Congress. If adopted, this IMP would preventReclamation from performing its contractual obliga-tions of delivering water to irrigation districts in"Compact Call" years. Federal projects were spe-cifically designed to be in compliance with theCompact and our use has not increased over time butdecreased as a result of uncontrolled depletions up-stream of our reservoirs. Inadequate water supplies,because of depleted stream flows in the URNRD,adversely affect surface irrigators who were planningon supplies expected after the signing of the Compact.Depleted surface water deliveries directly and sub-stantially reduce the economic benefits provided bythe Federal projects.

Reclamation needs a better understanding on howthe surface water controls of this proposed IMP willwork. If the state recognizes the administration ofwater in the basin for Compact compliance as a"beneficial use" then the senior water right holders inthe basin should be compensated. Bypassing inflowsfrom upstream reservoirs to store water in HarlanCounty Lake is, in our view, a "selective call." Two ofReclamation’s reservoirs upstream are senior toHarlan County Lake and the other reservoirs have anequal water right priority to that of Harlan CountyLake. Additionally, if all natural flow permits are

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closed, as indicated in the proposed IMP, whatauthority will be used to supply water to the Court-land Canal and Lovewell Reservoir during "CompactCall" years? If the water cannot be stored or divertedas indicated in this IMP, then the water flowingthrough our reservoirs is no longer project water.Reclamation does not currently have authority totransfer non-project water through Courtland Canal fora non-project use. Finally, Reclamation is concernedthat "Compact Call" years could result in surface waterusers losing irrigation supplies for multiple years as thereservoirs ability to store water is reduced. The finan-cial viability of our irrigation districts, which supplieswater to approximately 700 users in Nebraska, wouldbe in jeopardy if this would occur. This is unrea-sonable. Other impacts coupled with reduced reser-voir levels will occur to recreational and fish andwildlife benefits associated with these projects. It isour understanding that DNR predicts surface waterusers will be curtailed 2 out of 10 years.

Please provide us with the modeling and supportingdata showing the frequency that surface water cur-tailments will occur.

As an alternative, Reclamation believes the watersupplies of the basin should be managed fairly acrossthe basin for all water users. A long term conjunctivemanagement approach should be developed that allo-cates consumptive use in an equitable manner acrossthe basin. This approach would allow water to bemarketed between all users based on consumptiveuse. Surface water should be provided with an

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equitable share of Nebraska’s consumptive use during"water short" years. We again want to stress that theearliest water rights in the basin are the surface waterrights that are currently not being provided "equityamong water users" and if this IMP is adopted, willnot be in the future. Sustained surface water suppliesare critical for project viability and Nebraska’s abilityto be in compliance in the long term.

In conclusion, Reclamation is willing to continueworking with all the NRDs, Irrigation Districts, andState as they seek compliance with the Compact. TheIMP should recognize and protect the investment ofthe United States’ taxpayers made decades ago. Toensure compliance in the long term. Reclamation be-lieves there must be a healthy surface water com-ponent in the Basin. To accomplish this, we believereduction in ground water pumping must be sig-nificantly more than currently provided in the IMP toallow base flows to begin to recover. Ground waterpumping and other upstream uses are progressivelydepleting reservoir inflow.

Reclamation is hopeful as you finalize the IMP thatyou will study the presented testimony and respondto our specific questions and concerns we have pre-sented in this statement.

/s/Aaron M. ThompsonAaron M. Thompson,

Area Manager