Disputes among American states over interstate rivers have been common. Three methods of dispute resolution have evolved: (i) a state may sue another state in the original jurisdiction of the US Supreme Court, which will apply the doctrine of Equitable Apportionment (Kansas v. Colorado, 1907); (ii) Congress may allocate the water22; and (iii) the states may settle their differences with interstate compacts, as is illustrated by the Republican River Compact entered into by Kansas, Colorado and Nebraska in 1942 (Kansas Statutes Annotated, 2005, §§82a-518).
Draining a 64,491 km2 watershed, the Republican River begins in Colorado, runs eastward into Kansas, turns northward into Nebraska and then south-east running back into Kansas. Because of the interstate nature of the river and the potential for conflict, Kansas, Colorado and Nebraska signed the Compact in 1942 with a view of equitably dividing the waters of the river and its tributaries and of avoiding future conflict. The Compact provided the name and location of each basin and subbasin, defined the 'virgin annual water supply' as 'the water supply within the Basin undepleted by the activities of man' (Kansas Statutes Annotated, 2005, Art. II) and allocated to each state a portion of the virgin annual water supply. The Compact runs in perpetuity.
In the 1990s, Kansas claimed that Nebraska was using more of its share of water by allowing unregulated pumping of alluvial groundwater. After unsuccessful facilitation talks, Kansas sued Nebraska and Colorado in the US Supreme Court in 1999. A threshold issue involved alluvial groundwater. Nebraska denied that the Compact covered groundwater pumping, in that the language of the Compact did not expressly address groundwater in its allocation scheme. The Supreme Court ruled against Nebraska on that issue, holding that '[t]he . . . [c]ompact restricts a compacting State's consumption of groundwater to the extent the consumption depletes stream flow in the Republican River Basin' (State of Kansas v. State of Nebraska and State of Colorado, 2002, Special Master's First Report and Case Management Order). In 2003, the states settled the other issues in the case. Some of the settlement topics included treatment of groundwater pumping (including the use of computer modelling of the groundwater system as a means of accounting for the consumption of groundwater), dispute resolution, a moratorium on the construction of new groundwater wells, formulas for determining future compact compliance, use of 5-year running averages for accounting and compliance and a framework for working together 'to improve operational efficiencies and the usable water supply in the lower Republican River basin' (Testimony of David L. Pope, 2003).
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