BOARD00356

• Board Meeting Date: 5/22/2000
• Description: CWCB Director's Report
• Board Meetings - Doc Type: Memo

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e 8. Kansas v. Nebraska, United States SuprelDe Court, No. 126, Original.

Issue: Does the Republican River Compact allocate groundwater?

Decision: Special Master Vincent McKusick issued a report recommending to the Court that
the Compact restricts the compacting states' consumption of all ground water - alluvial and
Ogallala - that depletes stream flow in the Republican River Basin.

Discussion: Kansas filed an original action against Nebraska in the U.S. Supreme Court in
1998, alleging that Nebraska had violated the Republican River Compact by allowing post-
compact wells to consume more water than allowed under the Compact. Nebraska filed a motion
to dismiss, claiming that no groundwater was allocated under the Compact. Kansas argues that
the Compact includes both alluvial and Ogallala Aquifer groundwater. Colorado's position is
that the Compact includes alluvial, but not Ogallala, groundwater. On January 28th, the Master
issued a report recommending that the Compact allocates both alluvial and Ogallala
groundwater. Although Kansas has not alleged a Compact violation by Colorado, if the Court
accepts the Master's recommendation, the case could affect Ogallala Aquifer water users in
Colorado. At the very least, determining Ogallala impacts will require a complex technical trial.
Colorado and Nebraska filed exceptions to the report. Kansas' reply is due May 25th. We
don't expect the Supreme Court to consider the exceptions until next fall.

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9. Animas-La Plata Pro.iect.

Issue: Will legislation authorizing construction of the Animas-La Plata Project and
finally settling the Ute Tribes' reserved rights claims on the Animas and La Plata Rivers be
enacted this session?

Decision: Pending.

Discussion. In 1986, Colorado entered into a settlement agreement, which was approved by
Congress in 1988, that resolved the Ute Tribes' reserved rights claims in Water Division 7. Part
of that settlement is contingent upon construction of the Animas-La Plata Project. The
settlement provides that if the project is not completed by January I, 2000 - which of course it
wasn't - t1Je Tribes have five years to commence litigation of their claims from the Animas and
La Plata rivers. After years of delay, the project is again moving forward. In 1998, Secretary of
the Interior Babbitt proposed what has been called Animas-La Plata Ultra Lite -- a project
limited to Indian and M&I uses. Despite this blow to the hopes of irrigators on the La Plata, t1Je
Tribes and water users put forward a proposal very similar to the Administration's, which Rep.
McInnis incorporated into proposed legislation - H.R. 3112. The Committee hearing was to
be held on May l1'h. On January 13th, Reclamation issued a draft supplemental EIS on the
project that proposes a preferred alternative very similar to H.R. 3112. On May 4th, Sen.
Campbell introduced a similar bill- S.B. 2508 - in the Senate. Campbell's bill includes
Congressional determinations intended to strengthen the case for ALP if it is challenged in
court. The water users and the Tribes have made major concessions to satisfy environmental and
budget concerns. I will continue to support the State/water user/tribal push for legislation that
will finally and fairly resolve the Tribes' claims without taking water away from non-Indian
water users. In the past few months, I have urged the environmental groups who oppose the