With the arrival of the twentieth century, technology allowed surface water supplies to be used by communities, industry, and agriculture in greater quantities, and be used farther away from the water’s source. In addition, public works undertaken in the wake of the Great Depression in the 1930s allowed states to impound vast quantities of water. With increased consumption and impounding of water, interstate allocations of shared surface water needed to be regulated, and one of the prevalent means of accomplishing this task was the creation of interstate compacts. States began negotiating these water compacts among themselves to set forth specific allocations and methods for settling disputes in interstate water basins. The interstate compacts assured water supplies and also typically allowed mechanisms to resolve disputes when downstream states were denied access to appropriated water. One such agreement between Colorado, Kansas, and Nebraska was called the Republican River Compact. For a time, this compact functioned well, but by the 1980s tensions between the states began to mount. Available water supplies in the Republican River basin were dwindling as surface water unallocated at the time the Compact was entered began to diminish because of appropriation within the respective states. In addition, groundwater wells within the basin had grown at exponential rates, further depleting water within the basin. Because of inadequacies of the Compact and state laws relating to the Compact, a dispute arose between Kansas and the upstream states of Colorado and Nebraska. The dispute culminated in 1998 when Kansas filed suit in the United States Supreme Court to enforce the provisions of the Republican River Compact. The suit was finally settled in 2003 when the Supreme Court approved the Final Settlement Stipulation. This Note will analyze the terms of the Final Settlement Stipulation and whether those terms adhere to the terms of the Republican River Compact. It will show that the Republican River Compact did contemplate regulation of all components of the water supply in the Republican River basin, including groundwater. In addition, it will show that the Final Settlement Stipulation was a substantial improvement upon the existing vague and general guidance of the original compact. It will also demonstrate that while the settlement was a needed improvement, future disputes may be on the horizon if the states fail to make good faith efforts to comply with the terms and goals of the Compact and Final Settlement Stipulation. Section II explains the relevant facts and circumstances leading up to the Kansas suit and eventually the final settlement. Section III.A explains the purpose of the original Republican River Compact and its relevant provisions. Section III.B explains the divergent water appropriation laws of Kansas and Nebraska that ultimately laid the ground for the ensuing dispute. Section IV demonstrates that groundwater was considered as part of the water supply regulated by the Compact, that the settlement agreement was a significant improvement in the ability of the states to appropriately apportion water resources, and why certain weaknesses may still lead to future disputes.
Aaron M. Popelka,
The Republican River Dispute: An Analysis of the Parties' Compact Interpretation and Final Settlement Stipulation,
83 Neb. L. Rev.
Available at: https://digitalcommons.unl.edu/nlr/vol83/iss2/10