BOARD02331

• Board Meeting Date: 9/24/2001
• Description: Report of the Attorney General
• Board Meetings - Doc Type: Memo

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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 argued that
the Compact includes both alluvial and Ogallala Aquifer groundwater. Colorado's position was
that the Compact includes alluvial, but not Ogallala, groundwater. On January 28, 2000 Special
Master 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. The Supreme Court simply denied Nebraska's
motion to dismiss, without ruling on the alluvial/Ogallala distinction. However, the Court's
ruling will have the practical effect of allowing a trial on the impacts of all groundwater
pumping. Determining Ogallala impacts will require a! complex technical trial with extensive
modeling. Working closely with this office, the State Engineer has contracted with experts in the
fields of surface water hydrology, groundwater modeling, land use practices, and GIS services.

On July 31, 2000, Nebraska filed a cross-claim against Colorado, alleging overpumping
and Compact violations. In our counterclaims against Nebraska and cross-claim against Kansas,
we alleged both downstream states are violating the Compact and injuring Colorado by their
overpumping. The Special Master has set a very aggressive trial preparation schedule, with trial
set to begin March 16, 2003. The Master is assessingl/3 of his fees and costs against Colorado.
The case could substantially affect Republican River basin and Ogallala Aquifer water users in
Colorado.

Discovery is well under. way; All three states have now filed initial disclosures, havel
,'served and answered, interrogatoriesartd!document production requests, and,.have completed
,their review of federal documentsre1ated'tothe Republican River basin. The logisticsand'co'st
of disc()veryhave proved\to be'staggering: Nebraska has produced over 200,000 pages' of'
electronically imaged documents, Colorado is producing over 125,000 pages, and the "i i"!' '
estimate of pages to be imaged from federal agencies'is 165,000. Kansas will probably
produce similar quantities.

The Master set a briefing schedule this fall apd winter for issues of compact
interpretation and affirmative defenses. The resolution ofthese issues -- including whether
overuse should be measured sub-basin by sub-basin' or by total state allocation, and whether the
other states have a specific delivery obligation to Kansas at the Guide Rock diversion - will
further focus issues for trial. On October 2 Colorado will file its response on which
affirmative defenses (such as unclean hands, sta1iding, or impossibility of performance) are
legally valid. Meanwhile, the USGS ground wateriofthe basin is still not ready, but we are
gearing up our technical preparation as much as possible.

An initial settlement meeting among the three states and the federal government has
been scheduled for October 4, and a follow-up meeting may occur on October 19.

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8. Animas-La Plata Pro.lect.

Issue: Now that legislation authorizing ,he construction ofthe down-sized Animas-
La Plata Project has been enacted into law, theinext task is to assure that Congress
appropriates sufficient funds to keep developm~nt on track.

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