Opposition Brief — Kansas v. Nebraska and Colorado (No. 220126-ORG)

In The

Supreme Court of the United States

*

STATE OF KANSAS

Plaintiff,

STATE OF NEBRASKA

+

KANSAS’ BRIEF. IN OPPOSITION

TO NEBRASKA’S MOTION TO DISMISS

September 10, 1999

°

Caria J. a.

Attorney General of Kansas

Joun W. Campsei,

Chief ~— Attorney General

Assistant Attorney General

Leianp E. Rowrs

Amy L.. AuPDEMBERGE

Special Assistant Attorneys General

Joun B. Drarea

Counsel of Record

Special Assistant Attorney General

ANnprew S. MONTGOMERY

Montcomery & Anprews, P.A.

Post Office Box 2307

Santa Fe, New Mexico 87504-2307

(505) 982-3873

TABLE OF CONTENTS

Page

pe TT ee eee re iii

DEE. ce vaesvcduses o> em, Coeplate tee Staite 1

1. This Case..... Vs) oh Wa Tp ett Rote alee 1

2. The Republican River Basin.... ... .. ...... l

3. The Republican River Compact... 3

Summary of Argument .. 5

PRU occ cscs pp tvensscwesens 9

I. The Plain Language of the Republican River

Il.

III.

Compact Restricts a State’s Consumption of

Groundwater to the Extent Necessary to

Maintain Allocations of Surface Flows to

Downstream States ...........

The Records of the Negotiations and

Approval of the Republican River Compact

Show that the Compact was Intended to

Restrict a State's Consumption of Ground-

water to the Extent Necessary to Maintain

Allocations of Surface Flows to Downstream

States.. ..... is .s aeeweees sas daw S4RES

Nebraska‘s Arguments that the Compact Does

Not Restrict Consumption of Groundwater

Are Without Merit... .. .. .......

A. Nebraska Misstates the Kansas Claim...

B. The Term “Virgin Water Supply” Includes

Both Surface Water and ibsniuidiaie

RE wc cninseseunsys er ae

11

22

22

23

TABLE OF CONTENTS -—- Continued

Page

C. The Sporhase Decision and the Brief

Endorsed by Kansas in that Case are Con-

sistent with Kansas’ Position that the

Compact Restricts Consumption of

Groundwater........ SN Stns a aneer ee Geo ha tee

D. The States Have Traditionally Adminis-

tered the Compact on the Basis that

Groundwater Consumption Is Restricted

ey Te GE kc ok oie uk Sav cane BD

E. Only this Court Can Authoritatively Inter-

pret the Compact as Between the States... 33

F. Nebraska’'s Position is Inconsistent with

Its Position in Nebraska v. Wyoming, No.

108, Original...... i uN: Sie, Bear eateate’s 34

RD cekb us Sacenduae Sek uny whe wed web's 36

PS say 4h eas bh Gp Oe eke Sam ewe Seep ia

iil

TABLE OF AUTHORITIES

Page

CASES

sar: - Albuquerque v. er 72 N.M. 428, 379

ae GU vase thes soe jebe ee awaek ees 26

Kansas v. Colorado, 475 U.S. 1079 (1986) .... ........ 26

Kansas v. Colorado, 514 U.S. 673 (1995)... ~....24, 27

Kansas v. Colorado, No. 105, Original... ... ..... 6, 26

Kansas v. Nebraska, 119 S. Ct. 865 (1999)............. l

Kansas v. Nebraska, 119 S. Ct. 2364 (1999).... ........ l

Mississippi v. Louisiana, 506 U.S. 73 (1992)... ....... 34

Nebraska v. Wyoming, 325 U.S. 589 (1945), modified,

ee CE ks nicuv oe. UEesowae bed0 baa pews 35

Nebraska v. Wyoming, No. 108, Original.. ........ 8, 34

Nebraska v. Wyoming, 515 U.S. 1 (1995)........ ..... 34

Oklahoma v. New Mexico, 501 U.S. 221 (1991) ....... 11

Pioneer Irrigation Dist. v. Colorado, 658 P.2d 842

DN SEIN weep eeu wacdsvbupeenss << aa oa

Sporhase v. Nebraska ex rel. Douglas, 458 U.S. 941

SE: Nawhawadesescicssbeua puunSshe neewes 7, 27, 28

State ex rel. Douglas v. Sporhase, 208 Neb. 703, 305

PE.Oe- Me GEO COMED cc cseces: ; entekehveueuwees 31

State ex rel. Emery v. Knapp, 167 Kan. 546, 207 P.2d

EOE ace Gad ueeeD cesess- Kesetban Ausetteucses 32

State ex rel. Peterson v. Kansas State Bd. of a.

158 Kan. 603, 149 P.2d 604 (1944)..... — .oae on

Texas v. New Mexico, No. 65, Original ........ 6, 25,

iv

TABLE OF AUTHORITIES — Continued

Page

Texas v. New Mexico, 421 U.S. 927 (1975) __... ...... 25

Texas v. New Mexico, 462 U.S. 554 (1983)... .. ..25, 26

Texas v. New Mexico, 482 U.S. 124 (1987) ... ....24, 27

West Virginia ex rel. Dyer v. Sims, 341 U.S. 22 (1951) ... 33

CONSTITUTIONAL PROVISION

So a Se Se oe se cen Wee wena Con ae

STATUTES AND OTHER AUTHORITIES

Arkansas River Compact............ (sa 44" noe ee

Pecos River Compact .......c0.05 ee os 00s a an oe

Republican River Compact......... ....... .. passim

rk Se | Pererreer rrr ere ine 4 4ueeas 34

Act of August 4, 1942, ch. 545, 56 Stat. 736 .. ... 4

H. R. 5945, 77th Cong., Ist Sess. (1941)... ....... 3, 20

=. S562, 770n Come. tet Seem. CEPGE)... 2. occ ce ose eed

H. R. Doc. No. 690, 77th Cong., 2d Sess. (1942) .. 4

>. 669, 70th Cong., ist Sess. (1943). ........2000., .. 20

80 Cong. Rec. 8485-86 (June 1, 1936)...... ...... .. 12

86 Cong. Rec. App. 58 (Jan. 4, 1940) ...... oe «6h

1943 Kan. Laws 612, codified at Kan. Stat. Ann.

RI No ee ate er

Vv

TABLE OF AUTHORITIES ~- Continued

1943 Neb. Laws 377, codified at 2a Neb. Rev. Stat.,

Rs. SO Gece Sek oe Leen es eeeeekee:

1943 Colo. Laws 362, codified at Colo. Rev. Stat.

§§ 37-67-101, 102 (1990).. .......... er ae ee

See Ge Ce, OE ey Oe Bs hud Sex whcwas avers

Republican River Compact Administration, Ist

Annual Report (1961).. ...... ak: a teedes

Republican River Compact Administration, 30th

Annual Report (1990)... ...... Lae Sh oe i ee ae ee

Report of Special Master on Obligation of New

Mexico to Texas Under the Pecos River Com-

pact, Texas v. New Mexico, No. 65, Orig. (Sept. 7,

BONO Es 6 tavzsvanass 1s teeest Sees cee vests

Special Master Third Interim Report, Nebraska v.

Wyoming, No. 108, Original (Sept. 9, 1994)......

1 Bureau of Reclamation, U.S. Dep’t of Interior,

Definite Plan Report, Bostwick Division (1953)...

Bureau of Reclamation, U.S. Dep’t of Interior, Spe-

cial Report: Republican River Basin Manage-

ment Study (1985)....... ...... (i> phuaues

Bureau of Reclamation, U.S. Dep’t of Interior,

Resource Management Assessment, Republican

SE ES ns Won andicucddVbeseviced<a 3,

Edwin D. Gutentag et al., Geohydrology of the

High Plains Aquifer in Part of Colorado, Kan-

sas, Nebraska, New Mexico, Oklahoma, South

Dakota, Texas and Wyoming (USGS Profes-

sional Paper 1400-B) (1984) ... ...... Ter err ety

34

13

vi

TABLE OF AUTHORITIES — Continued

Page

Richard R. Lucky et al., Digital Simulation of

Ground-Water Flow in the High Plains Aquifer

in Part of Colorado, Kansas, Nebraska, New

Mexico, Oklahoma, South Dakota, Texas, and

Wyoming (USGS Professional Paper 1400-D)

SENG Ave. We sve NGS Cbeed pakeviuece ee mavens 2

Jon M. Peckenpaugh et al., Simulated Response of

a High Plains Aquifer to Ground-Water With-

drawals in the Upper Republican Natural

Resources District, Nebraska (USGS Water-

Resources Investigations Report 95-4014) (1995)..... 2

KANSAS’ BRIEF IN OPPOSITION TO

NEBRASKA’S MOTION TO DISMISS

STATEMENT

1. This Case

The Court granted Kansas’ Motion for Leave to File

Bill of Complaint on January 20, 1999. 119 S. Ct. 865. The

Bill of Complaint generally alleges that Nebraska has

violated the Republican River Compact by allowing con-

sumption in Nebraska of water, including groundwater,

in excess of Nebraska's allocation under the Compact. See

Kansas Bill of Complaint {J 7-11.

The Court granted Nebraska leave to file a motion to

dismiss the Kansas Bill of Complaint on June 21, 1999. 119

S. Ct. 2364. The Court limited the question to be

addressed to “whether the Republican River Compact

restricts a State’s consumption of groundwater.”

Nebraska filed its Motion to Dismiss (Motion) and Brief

in Support (Nebraska Brief) on August 2, 1999.

As Nebraska points out, the allegations of the Kansas

Bill of Complaint are deemed admitted for purposes of

the Motion. Nebraska Brief 4-5. The allegation of princi-

pal importance for purposes of the Motion is that ground-

water pumping and consumption in Nebraska are

depleting the waters of the Republican River and its

tributaries that would otherwise flow to Kansas.

2. The Republican River Basin

The Republican River Basin (“Basin”) has been

described generally in Kansas’ Brief in Support of Motion

for Leave to File Bill of Complaint 2-5. The Basin has been

the subject of a number of studies by the United States

Geological Survey (“USGS”) and other federal agencies.

These reports describe the hydraulic connection between

the groundwater aquifers and the surface flows of the

Basin. In its analysis of the High Plains aquifer (also

known as the Ogallala aquifer), which is prevalent in the

Basin, the USGS has pointed out that “[t}he base flow of a

river represents the ground-water contribution to the

river.” Richard R. Lucky et al., Digital Simulation of

Ground-Water Flow in the High Plains Aquifer in Part of

Colorado, Kansas, Nebraska, New Mexico, Oklahoma,

South Dakota, Texas, and Wyoming 38 (USGS Profes-

sional Paper 1400-D) (1986); see also Edwin D. Gutentag

et al., Geohydrology of the High Plains Aquifer in Part of

Colorado, Kansas, Nebraska, New Mexico, Oklahoma,

South Dakota, Texas and Wyoming 28 (USGS Professional

Paper 1400-B) (1984).

The USGS has stated that increased utilization of

groundwater from the Ogallala/High Plains aquifer in

the upper part of the Basin has had a “substantial effect

on water levels in the aquifer and on rates of ground-

water seepage from the aquifer into area streams.” Jon M.

Peckenpaugh et al., Simulated Response of a High Plains

Aquifer to Ground-Water Withdrawals in the Upper

Republican Natural Resources District, Nebraska 14

(USGS Water-Resources Investigations Report 95-4014)

(1995). The USGS has also shown that groundwater

pumping in Nebraska has the potential to reduce sub-

stantially, even eliminate, the base flow of the Republican

River and its tributaries. See id., at 50-59.

The U.S. Bureau of Reclamation has noted the effect

of groundwater pumping on stream flows in the Republi-

can Basin, pointing out that wells pumping near a stream

can either reverse the flow from the aquifer to the stream

or decrease the aquifer’s discharge to the stream. Bureau

of Reclamation, U.S. Dep’t of Interior, Special Report:

Republican River Basin Management Study 41-43 (1985).

In a more recent study, the Bureau of Reclamation stated:

“{Slince the late 1960’s, the area’s overall water

supply has decreased, in part because ground-

water development in the Republican River

Basin has increased. The drilling of wells and

the use of groundwater has had an adverse

effect on the available flow in the rivers above

the reservoirs. Because of this development,

inflows to Reclamation reservoirs have steadily

decreased ”“ Bureau of Reclamation, U.S.

Dep’t of interior, Resource Management Assess-

ment, Republican River Basin 14 (1996).

3. The Republican River Compact

The Republican River Compact was negotiated in

two phases. The first phase of negotiations occurred in

1940 and 1941, resulting in an agreement among the

States of Colorado, Nebraska and Kansas on March 19,

1941. See S. 1361, H. R. 5945, 77th Cong., 1st Sess. (1941).

After consideration and approval by Congress, however,

the bill granting the consent of Congress was vetoed by

President Franklin D. Roosevelt on April 2, 1942. Message

From the President of the United States Returning With-

out Approval the Bill (H. R. 5945) Granting the Consent

of Congress to Compact Entered Into by the States of

Colorado, Kansas, and Nebraska With Respect to the Use

of the Waters of the Republican River Basin. H. R. Doc.

No. 690, 77th Cong., 2d Sess., Misc., vol. 1, p. 1 (1942),

attached hereto as Appendix J. Although President

Franklin D. Roosevelt approved of the purpose of appor-

tioning the waters of the Republican River Basin by com-

pact, the President was concerned that the proposed

compact sought to withdraw federal jurisdiction over

navigation and to restrict federal authority over water

projects. Ibid. Congress thereafter passed, and the Presi-

dent signed, an act authorizing further negotiations and

appointing a federal representative to participate in those

negotiations. Act of August 4, 1942, ch. 545, 56 Stat. 736.

The three States agreed to the Republican River Compact

in its final form on December 31, 1942. The apportion-

ment of the waters of the Republican River Basin among

the States did not change from the apportionment

approved by Congress in 1941. Changes were made, how-

ever, to address the concerns expressed by the President.

The legislatures of each of the three States approved the

Compact as modified (Kansas: Act of February 22, 1943,

1943 Kan. Laws 612, codified at Kan. Stat. Ann. § 82a-518

(1997); Nebraska: Act of February 24, 1943, 1943 Neb.

Laws 377, codified at 2a Neb. Rev. Stat., App. 1-106

(1995); Colorado: Act of March 15, 1943, 1943 Colo. Laws

362, codified at Colo. Rev. Stat. §§ 37-67-101, -102 (1990)).

Congress then passed an act consenting to the Compact,

which the President approved on May 26, 1943. 57 Stat.

86.

The Republican River Compact is appended to the

Bill of Complaint in this case. Article I declares the major

purposes of the Compact, including the equitable divi-

sion of the waters of the Republican River Basin. Article

II provides definitions of certain central terms. “Virgin

Water Supply” is defined to be “the water supply within

the Basin undepleted by the activities of man.” The term

“Beneficial Consumptive Use” is defined to be “that use

by which the water supply of the Basin is consumed

through the activities of man.” Article HII sets out the

computed average annual Virgin Water Supply for each

of the sub-basins. Article III also provides for adjustment

of the allocations if the future computed Virgin Water

Supply varies more than 10% from that stated in Article

III. Article IV provides the specific quantifications com-

prising the allocation to each of the three States. These

are specified in amounts of beneficial consumptive use

allowed in each sub-basin in each State, except that a

delivery right is specified for Kansas at Guide Rock,

Nebraska. Articles V-VIII treat matters of less importance

to the current controversy. Article IX provides for joint

administration of the Compact by the water officials of

each State, who “may, by unanimous action, adopt rules

and regulations consistent with the provisions of this

Compact.” Articles X and XI treat the relationship

between the States and the Federal Government.

~ +

SUMMARY OF ARGUMENT

The Republican River Compact equitably divides the

waters of the Republican River Basin among the three

compacting States, Colorado, Nebraska and Kansas.

Groundwater pumping from both the alluvial and the

Ogallala aquifers in Nebraska is presently depleting the

surface flows of the Republican River upon which Kansas

depends and which are allocated to Kansas under the

Compact. The question whether the Compact restricts

consumption of groundwater quickly reduces to whether

the compacting parties intended to allow consumption of

groundwater to change the Compact allocations among

the States. The language of the Compact contains no such

exception to the allocations. Further, the Compact appor-

tions the entire virgin flow of the Republican River

among the States, including the portion of that flow that

is discharged to the river from the groundwater system.

Therefore, Kansas understands the plain meaning of the

Compact to allow no use of water in the Republican River

Basin that would change the Compact allocations to the

States.

Kansas’ reading of the Republican River Compact is

consistent with the Court’s interpretation of the Pecos

River Compact in Texas v. New Mexico, No. 65, Original,

and with its interpretation of the Arkansas River Com-

pact in Kansas v. Colorado, No. 105, Original.

In addition to the plain meaning of the Republican

River Compact, the records of the negotiations and

approval of the Compact show that the compacting par-

ties intended to include groundwater consumption in the

beneficial consumptive use allocations to the States in the

Compact. The minutes of the Compact negotiations and

associated official correspondence of the negotiating

Compact Commissioners from each State, together with

official statements of the federal officials advising Con-

gress on approval of the Compact, show an unmistakable

intention to include groundwater in the Compact alloca-

tions.

The arguments that Nebraska puts forward are with-

out merit. The fact that the term “groundwater” is not

mentioned in the Compact is of no significance. Nebraska

fails to point out that the term “surface water” also does

not appear in the Compact. Rather, the Compact negotia-

tors chose the term “Virgin Water Supply” in order to

encompass all of the waters affected by the apportion-

ment in the Compact. Nebraska’s assertion that the par-

ties previously understood the Compact as not restricting

the use of groundwater is contradicted by the very first

actions of the States after the initiation of formal Compact

administration. For instance, beginning with the First

Annual Report of the Republican River Compact Admin-

istratig. the States have demonstrated their understand-

ing that groundwater consumption, of both alluvial and

Ogallala groundwater, was included in the Compact

allocations. This understanding is made clear by the For-

mulas for the Computation of Annual Virgin Water Sup-

ply adopted by the Compact Administration and

published in the First Annual Report. The provisions on

the inclusion of groundwater are still in effect today. It is

only recently, since about 1990, that Nebraska has taken

the inconsistent position that groundwater consumption

is not restricted by the Compact.

Nebraska again misses the mark in arguing that the

Court’s decision and the amicus brief endorsed by Kansas

in Sporhase v. Nebraska ex rel. Douglas, 458 U.S. 941 (1982),

are somehow inconsistent with Kansas’ position that the

Republican River Compact restricts consumption of

groundwater. Kansas does not assert that the Republican

River Compact allocates the groundwater of the Ogallala

Aquifer among the compacting States. Nebraska misap-

prehends Kansas’ claim as being a claim to “Nebraska’s

groundwater” in the Ogallala aquifer. Kansas is not seek-

ing an equitable apportionment of the Ogallala aquifer.

To the contrary, Kansas claims only its equitable portion

of the surface flows of the Republican River as deter-

mined by the Compact. The Compact prohibits a State

from interfering or allowing its citizens to interfere, by

any means, including groundwater consumption, with

the surface flows apportioned to another State. Thus,

allocations of the Virgin Water Supply to Kansas cannot

lawfully be diminished under the Compact by ground-

water pumping in Nebraska; nor can Nebraska’s con-

sumption of water from any source in the basin,

including groundwater, lawfully exceed Nebraska's por-

tion of the Virgin Water Supply.

Nebraska‘s assertions with regard to decisions in

courts of the compacting States that make passing refer-

ences to the Republican River Compact are inapposite. In

fact, none of those decisions addressed the question

whether the Republican River Compact restricts ground-

water consumption. In any event, this Court is the only

court in the Nation authorized to interpret the Compact

authoritatively as between the States.

Finally, Nebraska is currently asserting in Nebraska v.

Wyoming, No. 108, Original, that the North Platte Decree

restricts Wyoming's groundwater use. There, the Court

allocated surface waters of the so-called “critical reach”

of the North Platte, with no explicit reference to ground-

water pumping or consumptive use. Yet Nebraska is

claiming that the Decree implicitly requires Wyoming not

to deplete flows beyond Wyoming's allocation in the

critical reach by groundwater pumping. Likewise, Kansas

is claiming that the Compact in this case requires

Nebraska not to deplete flows beyond Nebraska's alloca-

tion by groundwater pumping.

ARGUMENT

I. The Plain Language of the Republican River Com-

pact Restricts a State’s Consumption of Ground-

water to the Extent Necessary to Maintain

Allocations of Surface Flows to Downstream States.

A major purpose, indeed the core purpose, of the

Compact is to provide an equitable division of the waters

of the Republican River Basin. Art. |, 1. To deprive a

State of some or all of its Compact allocation is inconsis-

tent with that purpose. Thus, consumption of ground-

water that deprives a downstream State of its allocation

must be either limited or offset to avoid the diminishment

of the Compact allocation to the downstream State.

Article II of the Compact defines “Virgin Water Sup-

ply” as “the water supply within the Basin undepleted by

the activities of man.” Clearly, pumping and consumption

of groundwater are “activities of man.” Moreover, pump-

ing and consumption of groundwater are “activities of

man” that have great potential to deplete the water sup-

ply within the Basin. These central terms of the Compact

reflect the intent of the compacting parties that no State

should deplete the water supply of the basin by the

activities of man except to the extent of that State's alloca-

tion.

10

The Compact allocates all of the Virgin Water Supply

among the three States: the total Virgin Water Supply is

quantified in Article III as 478,900 acre-feet, which is

equal to the sum of the allocations to the three States in

Article [V (54,100 acre-feet to Colorado, 190,300 acre-feet

to Kansas, and 234,500 acre-feet to Nebraska). Thus, all

activities of man that deplete the Virgin Water Supply

must be included in the allocation of the State in which

they occur. For the purposes of this Motion, it is admitted

that groundwater consumption in Nebraska is depleting

the surface flows of the Republican River. These deple-

tions must therefore be included in Nebraska's Compact

allocation.

Since 100 percent of the Virgin Water Supply is allo-

cated among the States, excessive use by an upstream

State, if not offset, will unavoidably deprive a down-

stream State of its allocated share. Nebraska therefore has

a duty under the Compact not to exceed its allocation and

thereby to deprive Kansas of its allocation.

For instance, Kansas is entitled to a surface water

supply for beneficial consumptive use at Guide Rock,

Nebraska of 138,000 acre-feet, as adjusted:

“There is hereby allocated for beneficial

consumptive use in Kansas, annually, a total of

one hundred ninety thousand, three hundred

(190,300) acre-feet of water. This total is to be

derived from the sources and in the amounts

hereinafter specified

* » *

From the main stem of the Republican River

upstream from the lowest crossing of the river at

the Nebraska-Kansas state line and from water

11

supplies from upstream basins otherwise

unallocated herein, 138,000 acre-feet; provided,

that Kansas shall have the right to divert all or

any portion thereof at or near Guide Rock,

Nebraska ” Art. IV, {J 3-4.

It would offend the core purpose of the compacting par-

ties to deprive Kansas of some or all of its Guide Rock

allocation of surface flows by pumping and consumption

of groundwater for irrigation in Nebraska which, when

added to the consumption of surface water in Nebraska,

causes Nebraska to exceed its allocation. In other words,

the Compact expressly limits beneficial consumptive use

in each State and provides expressly for delivery of water

to Kansas. It was the intention of the compacting States

and Congress that those requirements be met. Nebraska’s

argument to the contrary should be rejected.

Il. The Records of the Negotiations and Approval of

the Republican River Compact Show that the Com-

pact was Intended to Restrict a State’s Consump-

tion of Groundwater to the Extent Necessary to

Maintain Allocations of Surface Flows to Down-

stream States.

Kansas believes that the Compact means what it says

and that there is no ambiguity regarding whether certain

beneficial consumptive uses of water in the Basin (i.e.,

uses of groundwater) are exempted from the require-

ments agreed to in the Compact. If it were determined,

however, that the Compact is ambiguous, resort to the

records of the negotiations and approval of the Compact

would be appropriate. Oklahoma v. New Mexico, 501 US.

221, 235 n. 5 (1991); see id., at 248-250 (Rehnquist, C.J.,

12

dissenting). But even if the records of the negotiations

and approval of the Compact are consulted, they simply

confirm that groundwater consumptive use was meant to

be accounted for in the Compact allocations.

The Republican River Basin suffered devastating

floods in 1935 and 1936, which led to a number of pleas

for federal help with regard to water projects. See, e.g., 80

Cong. Rec. 8485-86 (June 1, 1936) (statement of Sen.

Norris); 86 Cong. Rec. App. 58 (Jan. 4, 1940) (statement of

Rep. Curtis). Federal officials were amenable to providing

federal assistance to the States, but they insisted that the

States first agree by compact to a binding equitable

apportionment of the waters of the Republican River

Basin. This became the driving force behind the negotia-

tion of a compact. For instance, in early 1940, Nebraska

Governor R. L. Cochran wrote to E. Porter Ahrens, the

President of the Kansas Republican Valley Irrigation and

Flood Control Association, with regard to the effort to

negotiate a compact:

“Mr. Page, Commissioner of Reclamation, stated

at the Denver meeting of the Reclamation Asso-

ciation that a compact between states was abso-

lutely essential as a condition precedent to any

project approval on the part of the Reclamation

Service.” R.L. Cochran Letter to E. Porter

Ahrens, January 11, 1940, attached hereto as

Appendix A.!

! For reference, letters and memoranda relied upon in this

Brief are transcribed in the Appendices. Copies of the original

documents and an authenticating affidavit will be lodged with

the Supreme Court Clerk and delivered to the parties.

13

And once the compact was negotiated, the Bureau of

Reclamation relied upon the consumptive use allocations

in the Compact to protect inflows to the planned pro-

jects.

During their negotiations, the Compact Commission-

ers representing each of the States received information

from the Federal Government with respect to ground-

water use planned for the Republican River Basin. And

the Commissioners assured the federal planners that such

groundwater use was within the basin water supply that

they were intending to allocate by compact. Specifically,

in the fourth meeting of the Republican River Compact

Commission at Topeka, Kansas on January 27-28, 1941,

representatives of the U.S. Bureau of Agricultural Eco-

nomics (“BAE”), including Harry P. Burleigh, “appeared

before the Commission and outlined the scope of the

2 In planning for the Bostwick Project, which relies on the

inflows to Harlan County Reservoir, the Bureau of

Reclamation’s Definite Plan Report stated, “The number of

acres that can be irrigated has been determined from the water

supply remaining after making allowances for complete use of

Republican River Compact allocations in upstream states.” 1

Bureau of Reclamation, U.S. Dep’t of Interior, Definite Plan

Report, Bostwick Division 56 (1953). The Bureau of

Reclamation’s projected depleted annual inflow to Harlan

County Reservoir from the Definite Plan Report can be

compared to the actual inflows. The total net shortfall in inflows

to Harlan County Reservoir for the water years 1961-1994

amounts to well over four million acre-feet. See id., Part 3, App.

Il; Bureau of Reclamation, U.S. Dep’t of Interior, Resource

Management Assessment, Republican River Basin 29 (1996).

This shortfall is shown graphically in the fold-out Appendix A

to Kansas’ Reply to Nebraska’s Brief in Opposition and to

Nebraska’s Request for Oral Argument (filed August 1998).

14

work which the Bureau has been carrying on thruout [sic]

the Republican River basin to determine the extent and

useability of the underground waters of the basin.” Min-

utes of the Fourth Meeting of the Republican River Com-

pact Commission at Topeka, Kansas on January 27-28,

1941, attached hereto as Appendix B. After discussing the

particulars relating to the groundwater report that the

BAE was then preparing, the Minutes of the Fourth Meet-

ing state as follows:

“Mr. Burleigh presented the Commis-

sion with a tabular statement showing estimated

amounts of underground water available in the

various basins in the Republican River basin in

the three states and amounts of land to which

such water supplies could be applied within the

economic limits he had assumed.

“Mr. Burleigh advised the Commission that,

in view of the fact that numerous applications

had been made to his department by land-

owners thruout [sic] the basin, he was desirous

of obtaining a statement from the Commission

as to whether the amounts of underground waters

he had determined would be feasibly possible of

use, would, in the opinion of the Commission,

exceed the allotments of water to each state which

the Commission may have agreed upon; that his

department did not want to recommend devel-

opments of underground water supplies in

excess of the allocations of water to each state.

“He advised the Commission also that his

department is advising with the U.S. Bureau of

Reclamation with a view of reaching an under-

standing concerning the scope of future devel-

opments within the basin, both of surface and

15

underground waters, which would not be over-

lapping in effect Upon inquiry, Mr. Burleigh

advised the Commission that all of the under-

ground waters of the basin above Scandia, Kansas,

are included in the total water supplies of the basin,

as reflected in measurements of stream flow at

Scandia and other points in the basin, and that

any underground water developments must be con-

sidered as reducing to that extent the amount of

surface water available for use within the basin.”

Ibid. (emphasis added).

Mr. Burleigh’s desire for a statement from the Commission

was soon satisfied. On January 31, 1941 the Colorado

Commissioner, M.C. Hinderlider, wrote to his fellow Com-

missioners, George S. Knapp of Kansas and Wardner G.

Scott of Nebraska, with reference to Mr. Burleigh’s request:

“It is my understanding that Mr. Knapp will

address a letter to Engineer Burleigh of the

Bureau of Agricultural Economics, advising him

that the commissioners are in agreement that the

estimated amount of ground water which may

be developed in each of the tributary basins of

the Republican River basin are within the alloca-

tions which the Commission has tentatively

made.” January 31, 1941 M.C. Hinderlider Letter

to George S. Knapp and Wardner G. Scott,

attached hereto as Appendix C.

Actually, Mr. Knapp had already addressed that letter to

Mr. Burleigh on the day before, January 30, 1941. His

letter reads in its entirety:

January 30, 1941

Mr. Harry P. Burleigh,

Hydraulic Engineer,

Bureau of Agricultural Economics,

Amarillo, Texas.

16

Dear Mr. Burleigh:

We, the Republican River Compact Com-

missioners on the Republican River, meeting at

Topeka on January 28, examined the tables

which you submitted to us on the 27th indicat-

ing the approximate recommendations for con-

sumptive use of water by basins in the three

states, and find that the total estimated annual

consumptive use of water is within the amount

of the water supply available in the basin above

Hardy, and that the proposed allocations in each

of the several states fall within the amounts

which the Commission may see fit to allocate to

each state.

Please accept our thanks for meeting with

us and supplying us with these figures.

Sincerely yours,

Geo. S. Knapp

Commissioner for Kansas

For the Commission

GSK:MM

CC to M. C. Hinderlider

Wardner Scott

Thus, the Commissioners jointly notified the U.S. Bureau

of Agricultural Economics that the groundwater amounts

they considered feasible for the various sub-basins within

the Republican River Basin were within the basin Virgin

Water Supply that they were considering for allocation in

the Compact.

The deliberations of the Commissioners of the three

States resulted in an agreement in Denver on March 19,

1941. The next day, Colorado’s Commissioner, M.C. Hin-

derlider, addressed a letter to Ralph L. Carr, the Governor

17

of Colorado, which included a specific reference to the

reliance of the Commission on “a voluminous report of

the Bureau of Agricultural Economics of the U.S. Depart-

ment of Agriculture on the underground water resources

of the Republican River basin and their availability for

beneficial application to the future development of the

basin.” M.C. Hinderlider Letter to Ralph L. Carr, March

20, 1941, attached hereto as Appendix E. Mr. Hinderlider

then proceeded to describe the specific allocation to his

State in the following words: “The compact allocates to

Colorado, its citizens, agencies, associations and corpora-

tions all of the surface and underground water supplies origi-

nating in Colorado within the Frenchman and Red

Willow Creek drainage basins ” Ibid. (emphasis

added). This reaffirms the Colorado Commissioner's

understanding that groundwater use was intended to be

included in the allocations made in the Compact.

There are also strong indications that the Federal

Government shared the understanding of the State com-

missioners that groundwater use was included in the

consumptive use allocations in the Compact. The U.S.

Bureau of Reclamation’s Chief Engineer S.O. Harper

received a memorandum dated May 21, 1941 from

another Bureau of Reclamation official, J.R. Riter, which

included a discussion of the term “Virgin Water Supply”

as that term was used in the proposed compact. Mr. Riter

stated:

“Under the compact each state is accorded a

limited ‘beneficial consumptive use’ regardless

of whether such waters are derived from vir-

ginal natural flow, captured storage water,

18

return flow from irrigation, groundwaters recov-

ered by pumping, recovered waste water, or oth-

erwise. In short, the compact merely defines the

extent to which streams may be depleted

regardless of the methods of use.” J.R. Riter

Memorandum to S.O. Harper, May 21, 1941,

attached hereto as Appendix F (emphasis

added).

Riter concluded by saying that he “believed that the

compact as prepared accomplishes the purposes set forth

in the preamble thereof, and that it should be ratified by

Congress.” Ibid. Harper, the Chief Engineer of the Bureau

of Reclamation, subsequently endorsed Riter’s views in a

transmittal to the Commissioner of Reclamation dated

May 24, 1941, attaching the full Riter memorandum. The

May 24, 1941 transmittal of the Chief Engineer is attached

hereto as Appendix G.

Further, the Bureau of Reclamation’s engineer in

charge of the Republican River investigations, C.T. Judah,

in a letter to the Bureau's Chief Engineer, described meet-

ings he had attended that were held to acquaint county

land use planning committees with the Bureau of Agri-

cultural Economics’ plans to develop groundwater:

“Overlapping interests of both agencies were

pointed out to local interests and fundamental

differences in types of developments were

explained. A special effort was made to impress

on local people that water supplies for both ground

water pumping and for gravity stream diversions

were from the same source and that new develop-

ments supplied by either source would be limited to

the amount of water allocated to each state under the

19

proposed compact.” C.T. Judah Letter to S.O. Har-

per, May 31, 1941, attached hereto as Appendix

H (emphasis added).

This letter indicates that federal water officials were fully

cognizant of the hydraulic connection between surface

water and groundwater in the Republican River Basin

and that considerable efforts had been made to impress

that fact on people in the basin. Moreover, it shows the

conviction of federal water officials that the allocations to

each State under the proposed compact applied to uses

made of both surface water and groundwater.

The thorough understanding of the hydraulic rela-

tionship between groundwater and surface water among

federal water officials is shown by a statement of the

same Bureau of Reclamation engineer in charge of Repub-

lican River investigations. In a memorandum to the

Bureau's Hydraulic Engineer, concerning the draft BAE

report, he states:

“There is a general conflict of interest in the

basin between the B.A.E. and the Bureau of

Reclamation, since consumptive use of water on

areas irrigated by pumping from wells will naturally

deplete river flows available for development sim-

ilar to those the Bureau may contemplate.” C.T.

Judah Memorandum to Hydraulic Engineer,

U.S. Bureau of Reclamation, March 17, 1941, a

transcription of which is attached hereto as

Appendix D (emphasis added).

As noted above, the compact that was negotiated in 1940

and 1941 was ultimately vetoed by President Roosevelt

on April 2, 1942. Through subsequent negotiations in

which a federal representative participated, the proposed

20

compact was then altered to address the concerns

expressed by President Roosevelt. The apportionment

among the States in the various sub-basins of the Repub-

lican River was not changed, however. Compare H. R.

5945, 77th Cong. Ist Sess. Art. III (1941), attached hereto

as Appendix I, with S. 649, 78th Cong. Ist Sess. Art. IV

(1943), attached hereto as Appendix K. The Colorado

Commissioner, Mr. Hinderlider, confirmed the retention

of the earlier apportionment in his letter to the Governor

of Colorado forwarding the second version of the Com-

pact: “The draft of the Compact, herewith transmitted,

does not in any way change the allocations of water to

the signatory States provided for in the former Compact.”

M.C. Hinderlider Letter to Governor Ralph L. Carr, Janu-

ary 9, 1943, attached hereto as Appendix L. Significantly,

Mr. Hinderlider confirmed that the allocations in the final

Compact applied not only to surface water but to ground-

water uses as well: “These allocations include not only

surface, but also sub-surface, or underground water sup-

plies.” Ibid.

Colorado Commissioner Hinderlider also prepared

an explanatory statement and report to the 34th General

Assembly of Colorado, which is reproduced and attached

hereto as Appendix M. In that report, Commissioner Hin-

derlider stated, “It is believed that this Compact equita-

bly apportions the total available average annual virgin

water supplies of the Basin, both surface and under-

ground, among the three signatory States ” Id. at

M10.

Mr. Hinderlider submitted his report not only to his

own legislature in Colorado, but also to the federal repre-

sentative, Glenn L. Parker, and to George S. Knapp and

21

Wardner G. Scott, the Kansas and Nebraska Commission-

ers, respectively. M.C. Hinderlider Letter to Glenn L.

Parker, February 5, 1943, a transcription of which is

attached hereto as Appendix N. In his letter, Commis-

sioner Hinderlider said, “I would be pleased to have your

observations, criticisms, etc., on my explanatory article.”

Id. No record of any response to this request has been

found. Soon thereafter, the State legislatures approved

the Compact. As noted above, the State of Kansas

approved the Compact on February 22, 1943, the State of

Nebraska approved the Compact on February 24, 1943,

and the State of Colorado approved the Compact on

March 15, 1943. Thus, there is definitive evidence that all

three State commissioners and the federal representative

collectively understood, at the time of the approval of the

Compact by their respective governments, that the use of

both surface and underground waters within the basin

was included in the allocations in the Compact.

As the foregoing records of the negotiations and

related correspondence and legislation reflect, the Com-

pact Commissioners representing each of the Compacting

States and the federal officials advising the Compact

Commission and the Federal Government all understood,

at times critical to the negotiations and ratification of the

Compact, the hydraulic connection between groundwater

and surface water in the Republican River Basin and the

intent of the Compact to include consumptive use from

both surface water and groundwater in the Compact

allocations.

22

III. Nebraska’s Arguments that the Compact Does Not

Restrict Consumption of Groundwater Are With-

out Merit.

A. Nebraska Misstates the Kansas Claim.

Nebraska begins its Brief with the statement, “In its

Complaint, Kansas lays claim to vast quantities of

groundwater located in Nebraska.” Nebraska Brief 1. It

also states, “Kansas’ claim to Nebraska's groundwater is,

therefore, a claim for which Kansas cannot be granted

relief.” Id., at 5. Nebraska fundamentally misapprehends

Kansas’ claim. Kansas is not “lay[ing] claim to vast quan-

tities of groundwater located in Nebraska.” Neither is

Kansas laying claim to “Nebraska’s groundwater.”

Rather, Kansas is simply claiming that Nebraska has

exceeded its consumptive use limitations under the

Republican River Compact when all of Nebraska’s con-

sumptive use of Republican River surface waters and

hydraulically connected groundwaters in the alluvial and

Ogallala aquifers is taken into account. See Bill of Com-

plaint {{ 7-11. Because the Compact allocates all of the

Virgin Water Supply of the Republican River Basin, over-

use by Nebraska has resulted in depletion of surface

flows to the State of Kansas. Nevertheless, Nebraska may

allow a certain amount of pumping of alluvial and

Ogallala groundwater, so long as the effects of such

pumping on the surface flows of the Republican River are

offset as necessary to keep Nebraska’s total consumptive

use within Nebraska’s Compact allocation.

23

B. The Term “Virgin Water Supply” Includes Both

Surface Water and Tributary Groundwater.

Nebraska argues that the absence of the word

“groundwater” or like terms in the Compact must lead to

the conclusion that the Compact does not restrict con-

sumption of groundwater. Nebraska Brief 3, 5, 8-10.

Nebraska fails to point out, however, that the term “sur-

face water” also does not appear in the Compact. The

term used is “Virgin Water Supply,” which is defined to

be “the water supply within the Basin undepleted by the

activities of man.” Art. II, ¥ 3. This term is not limited

either to surface water or groundwater, but reflects the

intent of the compacting States to allocate the entire flow

of the Republican River as it would occur undepleted by

any activities of man. As demonstrated above, when the

Compact was drafted, the activities of man most likely to

deplete the Virgin Water Supply were surface water

diversions and groundwater pumping. Both are clearly

“activities of man,” and both were known to deplete

surface flows at the time of the Compact.

Nebraska's argument is simplistic. The question is

not whether groundwater was apportioned by the Com-

pact, but whether the States and Congress, in apportion-

ing the Virgin Water Supply, intended to account for the

effects of any activities of man in the basin on the flows

of the river other than direct diversion of river flows.

Obviously they did, because they defined the Virgin

Water Supply generally as the water supply “undepleted

by the activities of man.” In other words, to the extent

that groundwater pumping, an activity of man, depleted

24

river flows, the negotiators intended that such ground-

water pumping be restricted by the Compact.

Nebraska anticipates that Kansas will argue that this

Court has previously found groundwater to be appor-

tioned by compacts even though they did not contain the

word “groundwater.” Nebraska Brief 10. Again, however,

the Nebraska formulation is simplistic. The question is

not whether previous decisions of the Court have deter-

mined that groundwater was apportioned by other com-

pacts but whether such compacts restricted groundwater

consumption, as stated in the Court’s delineation of the

question for Nebraska's Motion to Dismiss. The two lead-

ing decisions addressing that question are Kansas v. Colo-

rado, 514 U.S. 673 (1995), and Texas v. New Mexico, 482 U.S.

124 (1987). Nebraska does not deny that in both of these

cases the Court found a violation of an interstate compact

allocating surface flows that had been excessively

depleted by groundwater pumping.

In Kansas v. Colorado, the Court specifically held that

post-compact well pumping in Colorado had violated the

Arkansas River Compact. 514 U.S. at 693-694. The Court

so held despite the fact that the Arkansas River Compact

does not use the word “groundwater” or like terms. See

Arkansas River Compact, 63 Stat. 145 (1949).

The Pecos River Compact, 63 Stat. 159 (1949), is

another interstate river compact that apportions surface

flows without mentioning groundwater. Yet the Court

enforced the Pecos River Compact against New Mexico

for depletions caused largely by groundwater consump-

tion. As the Court noted, “If development in New Mexico

were not restricted, especially the groundwater pumping

25

near Roswell, no water at all might reach Texas in many

years.” Texas v. New Mexico, 462 U.S. 554, 557 (1983); see

also id. at 557-558 nn. 2, 3. The centrality of the concern

about groundwater pumping in Texas v. New Mexico is

confirmed by Special Master Jean S. Breitenstein’s Sep-

tember 7, 1979 Report, which states, at page 44:

“Although hidden in a mass of semantics and mathema-

tics, the heart of this controversy is the pumping of

ground water in New Mexico.” When the Court entered

an injunction against New Mexico to comply with the

Pecos River Compact, 485 U.S. 388 (1988), the Court was

effectively restricting the use of groundwater in New

Mexico even though the Pecos River Compact said noth-

ing expressly about groundwater.

Nebraska responds that the States of New Mexico

and Colorado simply “failed to plead or argue that

groundwater was not subject to their respective Com-

pacts.” Nebraska Brief 10 (emphasis in original). But,

while the States of Colorado and New Mexico may not

have been bold enough to claim that groundwater was

not restricted under those Compacts, the amount of

depletion by groundwater pumping was a point of con-

tention in both cases, and the Court was fully aware of

the groundwater consumption element. Moreover, each

State had officially recognized the potential of ground-

water pumping to deplete river flows by the time the

respective complaints were filed. The Motion for Leave to

File Bill of Complaint in Texas v. New Mexico, No. 65,

Original, was granted in 1975. 421 U.S. 927 Thirteen

years earlier, for purposes of intrastate water administra-

tion, the New Mexico Supreme Court had formally recog-

nized the potential for groundwater pumping to deplete

26

surface flows. See City of Albuquerque v., Reynolds, 72 N.M.

428, 379 P.2d 73 (1962). Similarly, in Kansas v. Colorado,

No. 105, Original, the Motion for Leave to File Complaint

was granted in 1986. 475 U.S. 1079. Colorado had recog-

nized the interconnection of surface water and ground-

water at least as early as 1965, when it enacted legislation

formally requiring conjunctive administration of surface

water and groundwater. 1965 Colo. Laws, ch. 318, § 1.

Nebraska has still not fully recognized the potential of

groundwater pumping to deplete surface flows, and

therein may lie the reason that Nebraska is making the

present argument while New Mexico and Colorado did

not.

Nebraska suggests that it is significant that none of

the compacting States regulated groundwater within the

State at the time that the Compact was adopted. Nebraska

Brief 16. The relevance of this assertion is not altogether

clear. Moreover, as shown above, the defendant States in

the Texas v. New Mexico and Kansas v. Colorado compact

enforcement proceedings did not regulate groundwater at

the time that the Pecos River and Arkansas River Com-

pacts were adopted. Nevertheless, the lack of intrastate

regulation of groundwater did not deter this Court from

interpreting the compact in each case to effectively limit

groundwater use pursuant to the compact allocations.

Nebraska argues that the lack of development on the

Republican River at the time of the Compact is grounds

for distinguishing the Republican River Compact from

the Arkansas River and Pecos River Compacts. Nebraska

Brief 10. The claimed distinction is without substance,

however. Each of the three Compacts set a certain inter-

state apportionment of the waters of each stream. The

27

question is the same in each case: Did the parties to the

Compact intend that the apportionment to which they

had solemnly agreed could be circumvented by means of

groundwater pumping in the upstream State? Kansas

submits that the parties to the Republican River Compact

could not have so intended. This Court made the same

implicit determination in Texas v. New Mexico, 482 U.S.

124 (1987), and in Kansas v. Colorado, 514 U.S. 673 (1995).

C. The Sporhase Decision and the Brief Endorsed

by Kansas in that Case are Consistent with

Kansas’ Position that the Compact Restricts

Consumption of Groundwater.

Nebraska overstates the Court’s passing reference to

the Compact in Sporhase v. Nebraska ex rel. Douglas, 458

U.S. 941 (1982), when it claims that the “Court previously

noted the Compact concerns surface water rather than

groundwater.” Nebraska Brief 1; see also id., at 3, 11-12.

The Court was faced in that case with the State of

Nebraska's “suggestion that Congress has authorized the

States to impose otherwise impermissible burdens on

interstate commerce in ground water.” 458 U.S., at 958.

The Court held that the federal statutes deferring to state

water law and interstate compacts “do not indicate that

Congress wished to remove federal constitutional con-

straints on such state laws.” Id., at 959-960. Thus, the

Court was not considering the present question, namely,

whether the Republican River Compact restricts ground-

water pumping in the Republican River basin for pur-

poses of the consumptive use limitations in the Compact

and the delivery obligations downstream to Kansas. Nev-

ertheless, the passing remark by the Court that “[t]he

28

interstate compacts to which appellee refers are agree-

men's among States regarding rights to surface water,”

id., at 959, is correct. The Virgin Water Supply under the

Republican River Compact is the flow that would occur

in the River if it were undepleted by man’s activities.

Thus, there is nothing inconsistent between even the brief

reference to the Republican River Compact in Sporhase

and the position urged by Kansas in this case.

Nebraska urges that an amicus brief filed in support

of Nebraska in the Sporhase case by Colorado, which

Kansas endorsed, is inconsistent with Kansas’ position

that the Compact restricts groundwater consumption in

this case. Nebraska Brief 1, 2, 4, 12-13. Contrary to

Nebraska’s suggestion, however, Kansas is not claiming

that the Ogallala aquifer has been apportioned to Kansas.

Rather, Kansas contends that the natural discharges from

that aquifer to the Republican River and its tributaries

cannot be depleted by the activities of man without

accounting for those depletions as beneficial consumptive

use under the Republican River Compact.

D. The States Have Traditionally Administered

the Compact on the Basis that Groundwater

Consumption Is Restricted by the Compact.

The First Annual Report of the Republican River

Compact Administration (“RRCA”) states that on April 4,

1961 the Administration accepted “Formulas for the Com-

putation of Annual Virgin Water Supply, Republican

River Basin” (“VWS Formulas”) proposed by the Admin-

istration’s Committee on Procedure for Computation of

Annual Virgin Water Supply. RRCA, Ist Annual Report 2

29

(1961). An excerpt of the VWS Formulas is attached

hereto as Appendix O. The formulas for each of the sub-

basins’ Virgin Water Supply add in “the irrigation diver-

sions from groundwater” and subtract “the return flows

from the lands irrigated by diversions from ground-

water.” VWS Formulas 6-14. Thus, the consumptive use,

which is the difference between diversions and returns, is

included as part of the Virgin Water Supply determina-

tion. The General Procedures in the VWS Formulas pro-

vide, however, that the groundwater referred to in the

formulas shall be limited to the alluvium until further

information is available on wells outside the alluvium.

The General Procedures are attached hereto as Appendix

O to this Brief. The paragraph in the General Procedures

regarding groundwater diversions reads as follows:

“Irrigation diversions from ground water s):all

be limited to those by wells pumping from the

alluvium along the stream channels. The deter-

mination of the effect of pumping by ‘table-

land’ wells on the flows of the streams in the

Republican River Basin must await considerably

more research and data regarding the character

of the ground-water aquifers and the behavior

of ground-water flow before even approximate

information is available as to the monthly or

annual effects on stream flows. The ground-

water representatives of the Geological Survey

and the University of Nebraska reported that

the effect of pumping by ‘table-land’ wells is not

subject to an exact determination and that it is

possible those wells may not appreciably

deplete stream flows. The wells in the French-

man Creek drainage basin in Colorado have

been considered as ‘table-land’ wells.” Formulas

for the Computation of Virgin Water Supply,

30

Republican River Basin, General Procedures, a

transcription of which is attached hereto as

Appendix O.

“Table-land” wells are the non-alluvial wells pumping

from the Ogallala aquifer.

The VWS Formulas reveal the understanding of the

chief State water administrators in several respects as of

the inception of the formal administration of the Com-

pact. First, only alluvial groundwater is immediately

included in the formulas. Second, inclusion of the effects

of “table-land” (Ogallala) pumping is deferred until the

nature of those effects is better known. Third, once the

effects of Ogallala pumping are known, those effects are

to be included in the formulas. Thus, the first actions to

actively administer the Compact included formulas

adopted by all three States recognizing that groundwater

consumptive use must be accounted for in administering

the Compact. The understanding of the water administra-

tors of the compacting States included both alluvial and

Ogallala pumping as being within the allocations of the

Compact to the extent that they affect the flows of the

Republican River and its tributaries.

For some three decades, the three States adhered to

the initial understanding of the States’ chief water offi-

cials that the effects of both alluvial and Ogallala pump-

ing on the Republican River and its tributaries were to be

included in determinations of the Virgin Water Supply to

the extent that they could be determined. Alluvial well

pumping was assumed to affect the surface flows imme-

diately to the full extent of the consumptive use. Ogallala

well pumping was explicitly reserved until the effects of

such pumping could be quantified. The formulas

31

embodying that understanding are still in effect today.

Nor has any of the three States suggested amending those

Formulas with regard to the inclusion of groundwater

consumptive use. It was not until approximately 1990

that Nebraska began separately to take the position that

groundwater pumping was not restricted by the Com-

pact. See, e.g., RRCA, 30th Annual Report 13 (1990).

There is little substance to Nebraska’s claim that

“{hjistorically, none of the states have viewed the Com-

pact as authorizing the regulation, allocation or distribu-

tion of groundwater.” Nebraska Brief 3. Nebraska does

not even refer to the Administration’s annual reports in

making its assertion. Rather, Nebraska relies on largely

irrelevant decisions of the various State supreme courts.

Id. at 3, 13-15. Early in its Brief, Nebraska states, “The

Nebraska Supreme Court has never held that the Com-

pact authorizes the regulation, allocation or distribution

of groundwater,” citing State ex rel. Douglas v. Sporhase,

208 Neb. 703, 305 N.W. 2d 614 (1981). Nebraska Brief 3.

That decision of the Nebraska Supreme Court does not

even mention the Republican River Compact, however.

Therefore, it seems a questionable basis upon which to

draw any conclusion regarding the meaning of the

Republican River Compact.

Nebraska next relies on State ex rel. Peterson v. Kansas

State Board of Agriculture, 158 Kan. 603, 149 P.2d 604

(1944), to support its contention that the “Kansas

Supreme Court has never recognized the Compact as a

state or federal law creating the authority to regulate the

use of groundwater.” Nebraska Brief 13. Here again, the

Republican River Compact was never mentioned. That

case concerned the Equus Beds in south-central Kansas, a

32

considerable distance from the Republican River Basin.

The question was whether the State had statutory author-

ity to regulate the use of groundwater from the Equus

Beds. The Court held that the State officials had no

authority to regulate groundwater use from the Equus

Beds. That holding, therefore, does not support

Nebraska's contention. Again, the contention itself, even

if true, would be of questionable value.

The Kansas State Board of Agriculture case is a slender

reed on which to rest an authoritative interpretation of

the Republican River Compact. The Kansas Supreme

Court did not even mention the Republican River Com-

pact in that case. Thus, the Supreme Court of Kansas was

certainly not considering the question now before this

Court, namely, whether, as between States, groundwater

pumping can be restricted in order to provide each State

its allocation under the Republican River Compact.

Nebraska incorrectly analyzes the Kansas case of

State ex rel. Emery v. Knapp, 167 Kan. 546, 207 P.2d 440

(1949). Nebraska Brief 14. In that case, the Supreme Court

of Kansas was asked to rule upon the constitutionality of

the Kansas Water Appropriation Act of 1945 which had

been adopted partially in response to the earlier ruling of

the Supreme Court of Kansas in Kansas State Board of

Agriculture. The Kansas Supreme Court upheld the consti-

tutionality of the new Act. Whether the Republican River

Compact restricted groundwater use in another state, the

question in this case, was not at issue.

Nebraska also cites Pioneer Irrigation District v. Colo-

rado, 658 P.2d 842 (Colo. 1983) for the proposition that the

Colorado Supreme Court has concluded that the Compact

33

regulates surface water only. Nebraska's reliance on

Pioneer Irrigation District v. Colorado is misplaced. The

issue before the Colorado Supreme Court was a different

one, namely, whether the Colorado Groundwater Com-

mission was the proper forum to make the initial deter-

mination of facts affecting its administrative jurisdiction.

That case did mention, however, an earlier administrative

determination by the Colorado Groundwater Commis-

sion that was based on the very legal principle asserted

by Kansas in this Brief: If groundwater use affects surface

flows of the Republican River and its tributaries, that

groundwater use is subject to the Republican River Com-

pact.

E. Only this Court Can Authoritatively Interpret

the Compact as Between the States.

Nebraska’s reliance on State supreme court decisions

also founders at a more fundamental level. State supreme

courts lack jurisdiction to determine interstate controver-

sies. E.g., West Virginia ex rel. Dyer v. Sims, 341 U.S. 22, 28

(1951):

“It requires no elaborate argument to reject the

suggestion that an agreement solemnly entered

into between States by those who alone have

political authority to speak for a State can be

unilaterally nullified, or given final meaning by

an organ of one of the contracting States. A State

cannot be its own ultimate judge in a contro-

versy with a sister State. To determine the

nature and scope of obligations as between

States is the function and duty of the

Supreme Court of the Nation.”

34

That jurisdiction is explicitly reserved to this Court under

Article III, Section 2 of the United States Constitution and

28 U.S.C. § 1251(a). Thus, while an interstate compact

may be relevant to the disposition of a dispute between

parties other than the compacting States, no other court

has jurisdiction to decide controversies between States

that arise under a compact. See Mississippi v. Louisiana,

506 U.S. 73 (1992). Mississippi v. Louisiana originated as a

property dispute between rival private claimants, the

outcome of which depended upon whether the land in

dispute was located in Mississippi or Louisiana. While

the decision of the lower courts was allowed to stand as

between the private litigants, the lower court determina-

tion of which State encompassed the land in dispute was

not binding as between the States even though the States

were parties to the litigation. Likewise, the State supreme

court decisions relied upon by Nebraska are without any

legal effect as between the States. The respective rights of

the States under the Republican River Compact can be

decided by this Court alone.

F. Ne»raska’s Position is Inconsistent with Its

Position in Nebraska v. Wyoming, No. 108, Orig-

inal.

In Nebraska v. Wyoming, No. 108, Orig., Nebraska has

taken the position that increased groundwater pumping

in Wyoming “is presently violating and threatens to vio-

late the State of Nebraska's equitable apportionment

established by the Court by depleting the natural flows of

the North Platte River. ” Nebraska v. Wyoming, 515 U.S.

1 (1995), Special Master Third Interim Report, Nebraska's

Amended Petition { 11, App. D at D-4 to D-5 (Sept. 9,

35

1994). Nebraska prays for an order “enjoining the State of

Wyoming from increasing its depletion of the natural

flows of the North Platte River in violation of the State of

Nebraska's apportionment under the Decree.” Id., at D-6

to D-7. The Decree that Nebraska claims has been vio-

lated by Wyoming’s groundwater uses was entered by

the Court in Nebraska v. Wyoming, 325 U.S. 589, 665 (1945),

modified, 345 U.S. 981 (1953). That Decree makes no men-

tion of groundwater in its apportionment. Nevertheless,

Nebraska alleges that Wyoming's upstream groundwater

development is violating Nebraska’s equitable apportion-

ment of surface water. Likewise, Kansas alleges in this

case that Nebraska's upstream groundwater development

is violating Kansas’ equitable apportionment of surface

water. Thus, Nebraska's allegations in Nebraska v. Wyo-

ming support Kansas’ position that the Republican River

Compact restricts a State’s consumption of groundwater.

+

36

CONCLUSION

Nebraska’s Motion to Dismiss should be denied.

Respectfully submitted,

Caria J. STOVALL

Attorney General of Kansas

JoHN W. CAmpsBeti

Chief Deputy Attorney General

Dona.cp L. Pitts

Assistant Attorney General

Letanv E. Rovrs

Amy L. AUFDEMBERGE

Special Assistant Attorneys

General

JoHN B. Draper

Counsel of Record

Special Assistant Attorney General

ANbDREW S. MONTGOMERY

MontGoOmMERY & ANDREWS, P.A.

Post Office Box 2307

Santa Fe, New Mexico 87504-2307

(505) 982-3873

September 10, 1999

ia

Appendices

Table of Contents

Description Appendix

January 11, 1940 Nebraska Governor R.L. Cochran

Letter to E. Porter Ahrens, President of the Kan-

sas Republican Valley Irrigation and Flood Con-

Fs TTT ee pee eee Rewer 6

Minutes of the Fourth Meeting of the Republican

River Compact Commission at Topeka, Kansas

on January 27-28, 194 .. .........

January 31, 1941 Compact Commissioner M.C.

Hinderlider Letter to Compact Commissioners

George S. Knapp and Wardner G. Scott....

March 17, 1941 U.S. Bureau of Reclamation Engi-

neer in Charge of Republican River Investiga-

tions C.T. Judah Memorandum to Bureau of

Reclamation Hydraulic Engineer (excerpts)... .

March 20, 1941 Compact Commissioner M.C. Hin-

derlider Letter to Colorado Governor Ralph L.

RA sb cet anecee ci ee Te ee ee ree oe Te

May 21, 1941 Bureau of Reclamation Engineer J.R.

Riter Memorandum to Bureau of Reclamation

Chief Engineer S.O. Harper (excerpts)

May 24, 1941 U.S. Bureau of Reclamation Chief

Engineer S.O. Harper Memorandum to Com-

missioner of Reclamation..........

May 31, 1941 U.S. Bureau of Reclamation Engineer

in Charge of Republican River Investigations

C.T. Judah Letter to Bureau of Reclamation

SURE CIO sok ose: Vevac tues cases Sige?

H.R. 5945, 77th Congress, Ist Session (1941)....

iia

Appendices

Table of Contents — Continued

April 2, 1942 Message from the President of the

United States Returning Without Approval the

Bill (H. R. 5945) Granting the Consent of Con-

gress to Compact Entered Into by the States of

Colorado, Kansas, and Nebraska With Respect

to the Use of the Waters of the Republican River

Basin, H. R. Doc. No. 690, 77th ithe 2d Sess.

reese anes a

S. 649, 78th Congress, lst Session (1943)

January 9, 1943 Compact Commissioner M.C. Hin-

derlider Letter to Colorado Governor — L.

a rae her ee ee Ne ere

Explanatory Statement and Report to the Thirty-

fourth General Assembly by M.C. Hinderlider,

Republican River Compact Commissioner for

SE SOE sv optus ccchntes: keene

February 5, 1943 Compact Commissioner M.C.

Hinderlider Letter to Federal Representa ve

SE He SU che st vcwnceecess. saves

General Procedures, Formulas for the Computa-

tion of Annual Virgin Water Supply, Adopted

by the Republican River Compact Administra-

SE FOG Ga en ec ewe seveciictussseve ces

Al

APPENDIX A

January 11th, 1940.

Mr. E. Porter Ahrens

Scandia, Kansas.

Dear Mr. Ahrens:

Thank you for your letter of recent date with regard

to the meeting of the Governors at McCook with refer-

ence to flood control and development of the Republican

River Valley.

The desire is to obtain an agreement of a compact as

early as possible. A compact between states in order to be

effective must be endorsed by the legislatures of each

state and possibly by the national congress. It is hoped, in

the meantime, that studies going on on the part of the

Reclamation Service and the Army Engineers will dove-

tail with the activities of the states, assisting the states on

the one hand in agreeing upon a compact and on the

other assisting the federal agencies because of the activ-

ities of the State Commissioners.

Mr. Page, Commissioner of Reclamation, stated at the

Denver meeting of the Reclamation Association that a

compact between states was absolutely essential as a

condition precedent to any project approval on the part of

the Reclamation Service.

Trusting this answers your inquiry, I remain

Very sincerely yours,

Governor of Nebraska

Bl

APPENDIX B

Minutes of the Fourth Meeting of the Republican

River Compact Commission at Topeka, Kansas, on

January 27-28, 1941

Present:

M.C. Hinderlider, Commissioner for Colorado

George S. Knapp, Commissioner for Kansas

Wardner G. Scott, Commissioner for Nebraska

R.H. Willis, Chief, Bureau of Irrigation,

Water Power and Drainage,

Dept. of Public Works,

Nebraska

John Riddell, Ass’t Att’y Gen’l of Nebraska

Meeting convened at 10 A. M. in the hearing room of

the State Board of Agriculture in the Capitol Building.

The following gentlemen appeared before the Commis-

sion to express their views concerning needs for water

developments and water conservation in the Republican

River basin in Nebraska and Kansas.

Don P. Postlethwaithe, attorney of St. Francis,

Kansas, who talked on the needs of the valley in

that section of the state;

M.O. Ryan, representing a number of organiza-

tions in the Republican River valley in Nebraska

and Kansas, who spoke in behalf of the needs of

the residents in the area represented by him;

Dr. E. P. Ahrens of Scandia, Kansas, who spoke

in behalf of needs for flood control and water

for reclamation and other benefits in the lower

basin of the Republican River.

B2

All these gentlemen expressed the hope that a compact

may be consummated and ratified by the Legislatures of

the three states at an early date, and assured the Commis-

sion of their full support in the efforts of the Commission

to attain this objective. They expressed the view that any

conclusions reached by the Commission, they felt confi-

dent, would be approved by the water users thruout the

basin.

Mr. Harry P. Burleigh and Associate Robt. M. Barkley,

representing the U. S. Bureau of Agricultural Economics,

with offices at Amarillo, Texas, appeared before the Com-

mission and outlined the scope of the work which the

Bureau has been carrying on thruout the Republican

River basin to determine the extent and useability of the

underground waters of the basin and the availability of

lands which could be reclaimed thereby in tributary basin

areas. Mr. Burleigh advised the Commission that it is now

contemplated the complete report of the Bureau will be

available for distribution to the commissioners not later

than three weeks from date.

Mr. Burleigh explained at considerable length the

nature of these investigations and the basis of determina-

tions of water supply and available land areas, limits of

pumping lift, limits of cost per acre used in his deter-

minations and many other factors. He also presented the

Commission with a tabular statement showing estimated

amounts of underground water available in the various

basins in the Republican River basin in the three states

and amounts of land to which such water supplies could

be applied within the economic limits he had assumed.

B3

Mr. Burleigh advised the Commission that, in view of

the fact that numerous applications had been made to his

department by land owners thruout the basin, he was

desirous of obtaining a statement from the Commission

as to whether the amounts of underground waters he had

determined would be feasibly possible of use, would, in

the opinion of the Commission, exceed the allotments of

water to each state which the Commission may have

agreed upon; that his department did not want to recom-

mend developments of underground water supplies in

excess of the allocations of water to each state.

He advised the Commission also that his dep. .»nt

is advising with the U. S. Bureau of Reclamation © :t\ a

view of reaching an understanding concerning the scope

of future developments within the basin, both of surface

and underground waters, which would not be overlap-

ping in effect, to the end that a rational program of

development by both federal agencies might be carried

out in the future without the danger of over-development

by either agency to the detriment of developments by the

other agency. Upon inquiry, Mr. Burleigh advised the

Commission that all of the underground waters of the

basin above Scandia, Kansas, are included in the total

water supplies of the basin, as reflected in measurements

of stream flow at Scandia and other points in the basin,

and that any underground water developments must be

considered as reducing to that extent the amount of sur-

face water available for use within the basin.

At the afternoon session, Engineer W.J. Ware of the

U. S. Engineers Office at Kansas City appeared, at the

invitation of the Commission, and discussed present pro-

gress of the studies and reports on flood control and

B4

multiple use projects in the Republican River basin. Mr.

Ware advised the Commission that, in conformity with

former understanding of the Commission, his department

is reviewing its former reports concerning the economic

feasibility of the various reservoir projects which have

been investigated thruout the basin, to determine if the

excess benefits over costs resulting from the building of

the Harlan County Reservoir, could be so distributed

over other storage reservoirs thruout the basin as to show

the benefits from constructing such reservoirs would

exceed the estimated costs thereof. The Commission was

advised, however, that, even though the results of such

studies were favorable to the development of a number of

storage reservoirs for flood control or multiple-purpose

projects, there is no certainty that his department would

recommend such program of developments in lieu of the

single development of the Harlan County reservoir,

which is designed for a major purpose.

Mr. Ware also advised the Commission that his

department expects to give consideration to data fur-

nished by the Bureau of Reclamation concerning any

reservoirs or projects which are being investigated by the

Bureau, but that such information will have to be avail-

able to the Corps before June 1, 1941, since the supple-

mental report of the Corps of Engineers cannot be

delayed later than that date.

January 28, 1941

Meeting of the Commission convened in the Jayhawk

Hotel at 10 A.M., with all members present.

The Commission resumed its studies on water supply

and tentative allocations, which had been temporarily

BS

suspended at the last meeting in Lincoln. This work

consumed the entire day. After making some adjustments

of previous figures, and reconstructing present stream

flow in the light of all present available knowledge con-

cerning past uses of water within the basin, the members

of the Commission were in substantial agreement, both as

to principles and as to allocations of water to the three

states.

In this connection, the Commission gave consider-

ation to a preliminary draft for an interstate compact,

which had been prepared by Commissioner Hinderlider

and presented to the Commission on January 27th. The

members of the Commission were in general agreement

concerning the terms of the tentative draft, but reserved

any final conclusions until the tentative draft could

receive further study and approval of the Attorneys Gen-

eral of the three states.

The Commission adjourned its deliberations at 5

P.M., with the understanding that the Commission would

convene again at Denver, Colorado, on the 15th of Febru-

ary.

/s/ M.C. Hinderlider

Commissioner for Colorado

/s/ George S. Knapp

Commissioner for Kansas

/s/ Wardner G. Scott

Commissioner for Nebraska

Cl

APPENDIX C

[Letterhead partially omitted]

STATE OF COLORADO

ENGINEERING DEPARTMENT

DENVER

January 31, 1941

SUBJECT:

Mr. George S. Knapp

Republican River Compact Commissioner

Topeka, Kansas

Mr. Wardner G. Scott

Republican River Compact Commissioner

Lincoln, Nebraska

Gentlemen:

I am enclosing draft of the minutes of the third and

fourth meetings of the Republican River Compact Com-

mission at Lincoln and Topeka, respectively.

I have included suggested changes by Mr. Knapp in

the minutes covering the Lincoln meeting. As will be

noted, I have signed the copies of the minutes of these

two meetings and, if you approve the same, I will request

that you advise me accordingly, — otherwise approval can

await our next meeting on the 15th of February.

I am also enclosing some additions to the preliminary

draft for a compact as suggested by Governor Carr and

Attorney General Ireland.

It is my understanding that Mr. Knapp will address a

letter to Engineer Burleigh of the Bureau of Agricultural

Economics, advising him that the commissioners are in

C2

agreement that the estimated amount of ground water

which may be developed in each of the tributary basins of

the Republican River basin are within the allocations

which the Commission has tentatively made.

Very truly yours,

/s/ M.C. Hinderlider

Republican River Compact

Commissioner

MCH:EP

CC: R.H. Willis

[Enclosures omitted]

D1

APPENDIX D

Denver, Colorado, March 17, 1941.

JRR:AZK

MEMORANDUM TO HYDRAULIC ENGINEER

(C. T. Judah)

Subject: Water Facilities Area Plan, Republican River

Basin, Nebraska.

1. Reference is made to the Hydraulic Engineer's

letter of March 6, 1941, subject as above.

2. The report covers general farming, grazing, and

irrigation practices, and the general financial conditions

of residents and farmers of 13 divisions of the basin, and

makes recommendations for improvements in present

practices and needs in each division.

3. It is concluded one of the basic needs of the basin

is more irrigation to stabilize agriculture in general. Irri-

gation of 124,935 acres of land is recommended.

4. Irrigation developments are to be mostly small

individual pumping units. Pumping is to be principally

from wells, with some pumping from streams with sus-

tained summer flows. Developments are to take place

gradually over a period of several years as individual

needs and desires arise. It is concluded that a gradual

development of this type fits the needs of the basin much

better than larger developments, that take place over

relatively short periods of time.

5. Facility installation costs are estimated to vary

from $15 to $25 per acre for each installation. Total instal-

lation costs have been estimated at $1,230,000 for 124,935

acres.

D2

* * *

14. An average annual draft of about 18,600 acre-

feet is to be pumped from wells in the Ogallala formation,

principally on the headwaters of the Arickaree (6000 A.F.)

and Beaver Creek (12,000 A.F.). Rainfall is comparatively

light on these drainage areas and consumptive use will be

high, since a large part of the drainage area is grazing

land with considerable humus in the top soil, which

soaks up the water and has a tendency to hold it, causing

high evaporation losses. The Ogallala lies only a few feet

below the surface, and penetration of water into it would

be rather slow.

Contemplated Developments

15. There is a general conflict of interests in the

basin between the B.A.E. and the Bureau of Reclamation,

since consumptive use of water on areas irrigated by

pumping from wells will naturally deplete river flows

available for developments similar to those the Bureau

may contemplate. Recommended irrigation developments

by the B.A.E. and probable developments by the Bureau

for various sub-basins are given as follows:

” * ”

El

APPENDIX E

March 20, 1941

His Excellency, Ralph L. Carr

Governor of Colorado

Denver, Colorado

My dear Governor Carr:

I have the honor to transmit herewith for your con-

sideration and further disposition two original drafts of a

compact, which it is believed equitably apportions the

waters of the Republican River basin between the States

of Colorado, Kansas, and Nebraska. This compact, the

result of several months of investigations, study, and

eight conferences between the commissioners, their legal

advisers, and water users of the three states, was signed

at Denver on March 19, 1941, by the three compact com-

missioners appointed by the Governors of the signatory

states.

Since it appears that no interest of the federal gov-

ernment, by virtue of ownership of property or of any

responsibility as a result of interstate or international

treaties, or obligations to Indian tribes, is involved, no

representative of the government was invited to partici-

pate in the deliberations of the Commission, nor to

approve its findings and conclusions.

In its deliverations, the Commission gave careful

consideration to the report of the Division Engineer,

Corps of U.S. Engineers, dated February 27, 1940, to the

Chief of Engineers, covering the comprehensive study by

the Corps on flood control in the Republican River basin

and related matters, and to preliminary and progress

E2

reports by the U.S. Bureau of Reclamation, which is con-

ducting a comprehensive and detailed investigation of

the land and water resources of this basin; also to a

voluminous report of the Bureau of Agricultural Eco-

nomics of the U.S. Department of Agriculture on the

underground water resources of the Republican River

basin and their availability for beneficial application to

the future development of the basin.

While the absence of extensive development of the

natural resources of the Republican River basin tended to

simplify the problem of allocations of the waters therein,

the Commission was confronted with other difficult prob-

lems involving a multiplicity of primary and secondary

tributary streams, which are largely dissociated in their

possibilities for use, and which, due to their erratic char-

acter, will require extensive regulatory works throughout

the basin.

The compact allocates to Colorado, its citizens, agen-

cies, associations and corporations all! of the surface and

underground water supplies originating in Colorado

within the Frenchman and Red Willow Creek drainage

basins; about 25 percent of those of the North Fork of the

Republican; 80 per cent of those of the Arikaree River; 77

per cent of those of the South Fork of the Republican; and

an estimated 100 per cent of those of the Beaver Creek

basin, which it is believed is the limit of consumptive use

which it is practicable to make in Colorado of the waters

from these stream basins.

It should be borne in mind that these allocations of

water are for beneficial consumptive use and do not limit

the right of Colorado, or any of its agencies, to divert and

E3

apply much greater quantities of water than the amounts

allocated by the compact.

The compact, when ratified by the Legislatures of the

Signatory states and consented to by the Congress of the

United States, provides the basis for an orderly planning

of the regulation, conservation and efficient use of the

waters of the basin, unhampered by uncertainties arising

out of interstate conflicts or misunderstandings.

As hereinabove stated, it is believed that the compact

equitably apportions between the signatory states all the

waters of the Republican River basin. As commissioner

for the State of Colorado, I therefore respectfully recom-

mend that this compact be transmitted with a special

message to the present General Assembly of our state for

ratification.

In conclusion, I desire to express to you my deep

sense of appreciation for the confidence reposed in me as

the official representative of our state to carry out these

important negotiations, and for the invaluable assistance

from you as a result of your ripe experience in these

interstate matters. I also desire to acknowledge the loyal!

support and valuable aid received from Attorney General

Gail L. Ireland, who was my legal adviser during the final

preparation of the compact, to Clifford H. Stone, Esquire,

for valued suggestions; to Mr. A. C. Stiefel, assistant chief

engineer of the Colorado Water Conservation Board, who

prepared the map of the Republican River basin which is

made a part of the compact, and to Senators Burt Ragan

and Harry M. McKinney, and Representatives C.J.

Buchanan and Harold A. Tabor, who have at all times

given me sympathetic and loyal support.

E4

Titles for Senate Bill No. 42, by Sentors Ragan and

McKinney, and House Bill No. 188, by Representatives

Buchanan and Tabor, have heretofore been introduced in

the present Legislature, under which the compact, if

approved by you, may be properly presented to the Leg-

islature for final disposition.

Respectfully,

/s/ Hinderlider

Republican River Compact

Com'r for Colorado

MCH:EP

Fl

APPENDIX F

Denver, Colorado, May 21, 1941.

MEMORANDUM TO CHIEF ENGINEER

(J. R. Riter)

Subject: Republican River Compact — Colorado-Kansas-

Nebraska.

1. Reference is made to teletype message May 12

from the Acting Commissioner as follows:

“Please comment in detail air mail re Burkes

letter May 6 Republican River compact.”

2. The Bureau of Reclamation did not participate

formally in the preparation of the compact, but from time

to time as requested by the Compact Commissioners,

various members of the investigation organization, espe-

cially Mr. C. T. Judah, engineer in charge of the Republi-

can River Investigations, met with the Compact

Commissioners and furnished them with available factual

information, including runoff records secured by the

Bureau of Reclamation. The Compact Commissioners are

also furnished with copies of the Bureau’s reconnaissance

report of March 1940, showing potential development

possibilities within the Republican River Basin. Several

informal discussions were also held, particularly with Mr.

Hinderlider, State Engineer of Colorado, in response to

direct questions propounded by him regarding factual

data secured from the Bureau's investigations in the

Republican River Basin.

3. With respect to the questions propounded in

paragraph 2 of the District Counsel’s letter, it is believed

that the following answers are applicable:

F2

(a) “as to whether or not this compact was

entered into with due inquiry”, it is believed

that this portion can be answered “yes”

(b) “that it represents honest exercise of

judgment” This inquiry can be answered “yes”

(c) “and that it is equitable” This is a mat-

ter of opinion. The compact was formulated as

the result of “meeting of minds” of the three

interested states, and is believed to represent an

honest effort toward equitable allocation of

available waters.

a * *

8. In paragraph 9 the District Counsel raises the

question, “Is it intended that ‘virgin water supply’ and

‘natural waters’ shall be considered as synonymous?”

The answer to this question is “yes”

9. In paragraph 9 the District Counsel raises the

question as to whether return flow waters are embraced

within the term “virgin water supply” and also asks

under the compact what is the legal status of return flow

waters and have they been allocated. Whether or not

return flow is, by legal interpretation, a part of natural

flow or otherwise is immaterial. Under the compact each

state is accorded a limited “beneficial consumptive use”

regardless of whether such waters are derived from vir-

ginal natural flow, captured storage water, return flow

from irrigation, ground waters recovered by pumping,

recovered waste water, or otherwise. In short, the

F3

compact merely defines the extent to which streams may

be depleted regardless of the methods of use.

oa * *

Gl

APPENDIX G

UNITED STATES

DEPARTMENT OF THE INTERIOR

BUREAU OF RECLAMATION

CUSTOMHOUSE

DENVER, COLORADO

OFFICE OF THE CHIEF ENGINEER

May 24, 1941.

From Chief Engineer

To Commissioner

Subject: Republican River Compact.

1. Reference is made to office letter of May 7, to the

District Counsel’s letter of May 6, and to your teletype

message of May 12, reading:

“Please comment in detail air mail re Burke's

letter May 6, Republican River Compact.”

2. In view of the positive position taken by District

Counsel Burke that an adverse report on the Republican

River Compact should be filed with the Congress, I have

asked District Counsel Baird and Engineer Riter, who

have given this matter considerable study, to incorporate

their views in memoranda covering, respectively, the

legal and factual questions raised by Mr. Burke. Copies of

the two memoranda are enclosed.

3. Without entering into a detailed discussion, I

wish to state that I am in general agreement with the

views set forth in the enclosed memoranda. It seems to

me that there are only two vital issues involved in this

G2

matter. First, is the compact as drawn detrimental to any

vested interests of the United States as represented by the

Bureau of Reclamation? Second, will the compact be det-

rimental to future development by the Bureau in the

Republican River Basin? The answer to the first question

obviously is “no”, because the Bureau has no existing

projects in this basin. The answer to the second question

is likewise “no” because there are practically no Govern-

ment lands in this basin, and if any projects are con-

structed in the future under the Reclamation or Wheeler-

Case Acts, appropriations of water for such projects will

have to be made in conformity with state laws primarily

for the use and benefit of the owners of the lands to be

irrigated.

4. In view of these conditions, and the limited inter-

est of the United States in the Republican River Basin, I

do not agree with Mr. Burke’s contention that the com-

pact should be rejected because the United States was not

represented on the commission. If existing Government

projects or large acreages of Government lands were

located in the Republican River Basin, there would be

some justification for Mr. Burke’s position.

5. From a policy standpoint I feel that any attempt

by the Bureau to resist the approval of this compact

would be most unwise and would result in serious reper-

cussions which would be detrimental to harmonious rela-

tions between the Bureau and the interested states.

G3

S.O. Harper

Encls.

In dupl.

CC-D.C., Billings,Mont.

(with copies of two memoranda)

[Enclosures omitted; excerpts of Engineer Riter’s

memorandum are included in Appendix F, supra]

Hi

APPENDIX H

UNITED STATES

DEPARTMENT OF THE INTERIOR

BUREAU OF RECLAMATION

McCook, Nebraska

May 31, 1941

From Associate Engineer C.T. Judah

To Hydraulic Engineer

Subject: Water Facilities Meetings held in Republican

River Basin

1. Reference is made to the Chief Engineer's letter

of March 12, 1941; subject, Meeting with Water Facilities

Administration in the Republican River Basin.

2. The Bureau of Reclamation was represented at

most meetings by Associate Engineer C.T. Judah, or

where conflicting meetings were held, by Junior Engineer

Morris Broskin.

3. The planning agency for Water Facilities is

required to work out development plans with the Land

Use Committees in each county. County Land Use Com-

mittees were organized by the U.S. Department of Agri-

culture to plan and coordinate activities of the

Department of Agriculture. The County Agent acts as

secretary for the committee.

4. The meetings were held by the B. A. E. primarily

to acquaint the Land Use Planning Committees with the

proposed development plan, and to secure their approval

or incorporate further recommendations by them in the

report.

H2

5. In general, meetings were poorly attended, due

principally to excellent spring farming weather.

6. Ateach meeting the B. A. E. representative would

outline their proposed development plan, after which the

Bureau of Reclamation representative would outline the

general program in the basin and particularly in the local

area. Considerable interest was shown in each type of

development. However, no conclusions could be drawn

as to which type of development local interests preferred.

7 Overlapping interests of both agencies were

pointed out to local interests and fundamental differences

in types of developments were explained. A special effort

was made to impress on local people that water supplies

for both ground water pumping and for gravity stream

diversions were from the same source and that new

developments supplied by either source would be limited

to the amount of water allocated to each state under the

proposed compact.

In dupl.

CC-Commissioner

(6-23-41)

Il

APPENDIX I

H.R. 5945

SEVENTY-SEVENTH CONGRESS OF THE UNITED STATES OF AMER-

ICA; AT THE SECOND SESSION; BEGUN AND HELD at THE Crty OF

WASHINGTON ON Monpay, THE FirtH Day oF JANUARY, ONE

THOUSAND Nine HuNpDRED AND Forty-Two

AN ACT

Granting the consent of Congress to a compact entered

into by the States of Colorado, Kansas, and Nebraska

with respect to the use of the waters of the Republican

River Basin.

Be it enacted by the Senate and House of Representatives

of the United States of America in Congress assembled, That

the consent of Congress is hereby given to the entry by

the States of Colorado, Kansas, and Nebraska into a com-

pact with respect to the use of the waters of the Republi-

can River Basin, which reads as follows:

REPUBLICAN RIVER COMPACT

The States of Colorado, Kansas and Nebraska here-

inafter designated as Colorado, Kansas and Nebraska,

respectively, desiring to remove any and all causes, pres-

ent or future, which might lead to controversies with

respect to use of the waters of the Republican River

Basin, and being actuated by considerations of interstate

comity, and by a desire to effectuate an equitable division

of the waters of the Republican River Basin and the

I2

efficient beneficial consumptive uses thereof, and in con-

sideration of the mutual advantages resulting therefrom

within their respective boundaries, and pursuant to Acts

of their respective Legislatures, have resolved to con-

clude a compact for the attainment of these purposes, and

to that end, through their respective Governors, have

named as their respective commissioners for the negotiat-

ing of such a compact:

M.C. Hinderlider, for the State of Colorado

George S. Knapp, for the State of Kansas, and

Wardner G. Scott, for the State of Nebraska,

who have agreed upon the following Articles, to-wit:

Articte I.

The Republican River Basin, hereinafter referred to as

the “Basin”, is herein designated to mean all the area in

the States of Colorado, Kansas and Nebraska, which is

naturally drained by the Republican River and all of its

tributaries to its junction with the Smoky Hill River in

Kansas, a map of which signed by the commissioners

hereinabove named, is attached hereto and by reference

made a part thereof.

The Republican River and tributaries thereof within

the Basin, as hereinabove defined, are not navigable, and

all uses of water of a consumptive nature, as hereinafter

defined, wherever such uses may occur within the Basin,

shall constitute paramount uses.

I3

Artic.e II.

The term “Virgin Water Supply”, as herein used, is

defined to be the water supply within the Basin unde-

pleted by the activities of man.

The term “Beneficial Consumptive Use” is herein

defined to be that use by which the natural water supply

of a drainage basin is consumed by the activities of man,

and shall include water consumed by evaporation from

reservoirs, canals, ditches and irrigated areas.

Beneficial consumptive use shall be the basis and

measure of the right to divert and use the natural waters

of the Basin, by the citizens, agencies, associations and

corporations of the signatory states, and upon this princi-

ple the following allocations of water herein made are

predicated.

Arnicce III.

There is hereby allocated to Colorado for use annu-

ally a total of fifty-four thousand one hundred (54,100)

acre feet of water. This total is to be derived from the

sources and in the amounts hereinafter described, and is

subject to such quantities being physically available from

those sources:

North Fork of the Republican River drainage basin,

10,000 acre feet;

Arikaree River drainage basin, 15,400 acre feet;

South Fork of the Republican River drainage basin,

25,400 acre feet;

Beaver Creek drainage basin, 3,300 acre feet:

14

In addition thereto there is hereby allocated to Colo-

rado for use annually the entire water supply of the

Frenchman and Red Willow Creek drainage basins in

Colorado.

There is hereby allocated to Kansas for use annually

a total of one hundred ninety thousand three hundred

(190,300) acre feet of water. This total is to be derived

from the sources and in the amounts hereinafter

described and is subject to such quantities being physi-

cally available from those sources:

Arikaree River drainage basin, 1000 acre feet;

South Fork of the Republican River drainage basin,

23,000 acre feet;

Driftwood Creek drainage basin, 500 acre feet;

Beaver Creek drainage basin, 6400 acre feet;

Sappa Creek drainage basin, 8800 acre feet;

Prairie Dog Creek drainage basin, 12,600 acre feet;

The main stem of the Republican River at the

Nebraska-Kansas state line, 138,000 acre feet; provided

that Kansas shall have the right to divert all or any

portion thereof at or near the Town of Guide Rock,

Nebraska;

And in addition thereto there is hereby allocated to

Kansas for use annually the entire water supply originat-

ing in the Basin below the Nebraska-Kansas state line.

There is hereby allocated to Nebraska for use annu-

ally a total of two hundred thirty-four thousand five

hundred (234,500) acre feet of water. This total is to be

15

derived from the sources and in the amounts hereinafter

described and is subject to such quantities being physi-

cally available from those sources:

North Fork of the Republican River drainage basin in

Colorado, 11,000 acre feet;

Frenchman River drainage basin in Nebraska, 52,800

acre feet;

Rock Creek drainage basin, 4400 acre feet;

Arikaree River drainage basin, 3300 acre feet;

Buffalo Creek drainage basin, 2600 acre feet;

South Fork of the Republican River drainage basin,

800 acre feet;

Driftwood Creek drainage basin, 1200 acre feet;

Red Willow Creek drainage basin in Nebraska, 4200

acre feet;

Medicine Creek drainage basin, 4600 acre feet;

Beaver Creek drainage basin, 6700 acre feet;

Sappa Creek drainage basin, 8800 acre feet;

Prairie Dog Creek drainage basin, 2100 acre feet;

The North Fork of the Republican River in Nebraska

and the main stem of the Republican River between the

Colorado-Nebraska state line and the Nebraska-Kansas

state line, and from the small tributaries thereof, 132,000

acre feet.

The use of the waters hereinabove allocated shall be

subject to the laws of the state to which the allocations

16

are made. No state shall have the right to dictate the

method of distribution or place of use of the waters

herein allocated to another state.

Articie IV.

The specific allocations in acre feet made to each

signatory state by Article III are derived from the com-

puted average annual virgin water supply originating in

the following designated drainage basins in the amounts

shown:

North Fork of the Republican River drainage basin in

Colorado, 44,700 acre feet;

Arikaree River drainage basin, 19,610 acre feet;

Buffalo Creek drainage basin, 7,890 acre feet;

Rock Creek drainage basin, 11,000 acre feet;

South Fork of the Republican River drainage basin,

57,200 acre feet;

Frenchman River drainage basin, 98,500 acre feet;

Blackwood Creek drainage basin, 6,800 acre feet;

Driftwood Creek drainage basin, 7,300 acre feet;

Red Willow Creek drainage basin, 21,900 acre feet;

Medicine Creek drainage basin, 50,800 acre feet;

Beaver Creek drainage basin, 16,500 acre feet;

Sappa Creek drainage basin, 21,400 acre feet;

Prairie Dog Creek drainage basin, 27,600 acre feet;

17

The North Fork of the Republican River in Nebraska

and the main stem of the Republican River between the

Colorado-Nebraska state line and the Nebraska-Kansas

state line and the small tributaries thereof 87,700 acre

feet.

Should the future computed virgin water supply of

any source vary more than ten (10) per cent from the

virgin water supply as hereinabove set forth, the alloca-

tions herein made from such source shall be increased or

decreased in the relative proportions that the future com-

puted virgin water supply of such source bears to the

computed virgin water supply used herein.

ARTICLE V.

The judgment and all provisions thereof in the case

of Adelbert A. Weiland, as State Engineer of the State of

Colorado, et al, v. The Pioneer Irrigation Company,

decided June 5, 1922, and reported in 259 U.S. 498, affect-

ing the Pioneer Irrigation ditch or canal, are hereby rec-

ognized as binding upon the signatory states hereto and

the people of each said states, and Colorado, through its

duly authorized officials, shall have the perpetual and

exclusive right to control and regulate diversions of water

at al) times by said canal in conformity with said judg-

ment.

The water decrees heretofore adjudicated to said

Pioneer Canal by the District Court of Colorado in the

amount of fifty (50) cubic feet per second of time is

included in and is a part of the total amounts of water

hereinbefore allocated to the States of Colorado and

Nebraska.

I8

Artic.e VI.

A lower signatory state, its citizens, agencies, asso-

ciations and corporations, shall have the right to con-

struct or participate in the future construction and use of

any storage reservoir or diversion works in an upper

state for the purpose of regulating water herein allocated

to such lower state, provided that such right is subject to

the rights of the upper state, its citizens, agencies, asso-

ciations and corporations, to control, regulate and use the

waters herein allocated to it.

Articce VII.

A lower signatory state, its citizens, agencies, asso-

ciations and corporations, shall have the right to acquire

in an upper state by purchase, or through exercise of the

power of eminent domain, such easements and rights of

way, for the construction, operation and maintenance of

storage reservoirs, and of appurtenant works, canals and

conduits, required for the enjoyment of the privileges

granted by Article VI; provided, however, the grantees of

such rights shall pay to the governmental agencies in

which such works are located, each and every year dur-

ing which such rights of way are occupied for such

purposes, a sum of money equivalent to the average

annual amount of taxes assessed against the lands and

improvements so occupied, based upon the ten years

preceding the use of such lands, in reimbursement for the

loss of taxes to said governmental agencies.

I9

Articie VIII.

Should any facilities be constructed in an upper state

under the provisions of Article VI, such construction and

the operation of such facilities shall be subject to the laws

of such upper state.

Any repairs to or replacements of such facilities shall

also be made in accordance with the laws of such upper

state.

ArtTicte IX.

It shall be the duty of the three signatory states to

administer this compact through the official in each state

who is now or may hereafter be charged with the duty of

administering the public water supplies, and to collect

and correlate through such officials the data necessary for

the proper administration of the provisions of this com-

pact.

ARTICLE X.

The physical and other conditions peculiar to the

Republican River Basin constitute the basis for this com-

pact, and none of the signatory states hereby concedes

that this compact establishes any general principle or

precedent with respect to any other interstate stream.

ArtTicte XI.

This compact shall become operative when ratified

by the Legislatures of each of the signatory states and

consented to by the Congress of the United States. Notice

110

of ratification by the Legislature of a state shall be given

by the Governor of such state to the Governors of the

other states, and the President of *he United States is

requested to give notice to the Governors of the signatory

states of consent by the Congress of the United States.

IN WITNESS WHEREOF, the Commissioners have

signed this compact in quadruplicate original, one of

which shall be deposited in the archives of the Depart-

ment of State of the United States of America and shall be

deemed the authoritative original, and of which a duly

certified copy shall be forwarded to the Governor of each

of the signatory states.

Done in the City of Denver, in the State of Colorado,

on the nineteenth day of March, in the year of our Lord,

one thousand nine hundred and forty-one.

M.C. Hinper.ipeRr

Commissioner for Colorado

Georce S. Knapp

Commissioner for Kansas

WarRDNER G. Scott

Commissioner for Nebraska

Sec. 2 The right to alter, amend, or repeal this Act is

hereby expressly reserved.

SAM RayBurRN,

Speaker of the House of Representatives.

H. A. Wa ttace,

Vice President of the United States and President of the Senate.

111

[Endorsement on back of bill:]

I certify that this Act originated in the House of Repre-

sentatives.

SouTH TRmsBLE, Clerk.

ji

APPENDIX J

77th Congress House Doc.

2d Session No. 690

—_ —_——

—— -_ = —

COMPACT WITH RESPECT TO THE USE OF

WATERS OF THE REPUBLICAN RIVER BASIN

MESSAGE

FROM

THE PRESIDENT OF THE UNITED STATES

RETURNING

WITHOUT APPROVAL THE BILL (H.R. 5945)

GRANTING THE CONSENT OF CONGRESS TO

COMPACT ENTERED INTO BY THE STATES OF

COLORADO, KANSAS, AND NEBRASKA WITH

RESPECT TO THE USE OF THE WATERS OF THE

REPUBLICAN RIVER BASIN

Apri. 2, 1942 — Ordered to be printed

as a House Document

To the House of Representatives.

I return herewith, without my approval, H.R. 5945, a

bill granting the consent of Congress to a compact

entered into by the States of Colorado, Kansas, and

Nebraska with respect to the use of the waters of the

Republican River Basin.

The compact was negotiated by the three States with

a view to apportioning the waters of the Republican

Basin for irrigation and related uses. | approve of this

purpose and of an interstate compact as a means of

making the necessary apportionment. In this basin, as in

j2

other parts of the arid and semiarid West, the effective

use of water and the control of destructive floods demand

joint action by the States working in harmonious relation

with the Federal agencies concerned.

It is unfortunate that the compact also seeks to with-

draw the jurisdiction of the United States over the waters

of the Republican Basin for purposes of navigation and

that it appears to restrict the authority of the United

States to construct irrigation works and to appropriate

water for irrigation purposes in the basin. The provisions

having that effect, if approved without qualification,

would impede the full development of the water

resources of the basin and would unduly limit the exer-

cise of the established national interest in such develop-

ment.

While I find it necessary to withhold my approval of

the legislation in its present form, I would be glad to

approve a bill which, in assenting to the compact, speci-

fically reserves to the United States all of the rights and

responsibilities which it now has in the use and control of

the waters of the basin.

FRANKLIN D. ROOSEVELT

THe Wuitt House, April 2, 1942.

[Recitation of H.R. 5945 omitted]

Kl

APPENDIX K

78th CONGRESS

lst SESSION

S. 649

IN THE HOUSE OF REPRESENTATIVES

Aprit 20, 1943

Referred to the Committee on

Immigration and Naturalization

AN ACT

To grant the consent of Congress to a compact entered

into by the States of Colorado, Kansas, and Nebraska

relating to the waters of the Republican River Basin, to

make provisions concerning the exercise of Federal juris-

diction as to those waters, to promote flood control in the

Basin, and for other purposes.

Be it enacted by the Senate and House of Representatives

of the United States of America in Congress assembled, That

the consent of Congress is hereby given to the compact

authorized by the Act entitled “An Act granting the con-

sent of Congress to the States of Colorado, Kansas, and

Nebraska to negotiate and enter into a compact for the

division of the waters of the Republican River”, approved

August 4, 1942 (Public Law 696, Seventy-seventh Con-

gress; 56 Stat. 736), signed by the commissioners for the

States of Colorado, Kansas, and Nebraska at Lincoln,

Nebraska, on December 31, 1942, and thereafter ratified

K2

by the Legislatures of the States of Colorado, Kansas, and

Nebraska, which compact reads as follows:

“REPUBLICAN RIVER COMPACT

“The States of Colorado, Kansas, and Nebraska, par-

ties signatory to this compact (hereinafter referred to as

Colorado, Kansas, and Nebraska, respectively, or individ-

ually as a State, or collectively as the States), having

resolved to include a compact with respect to the waters

of the Republican River Basin, and being duly authorized

therefor by the Act of the Congress of the United States of

America, approved August 4, 1942, (Public No. 696, 77th

Congress, Chapter 545, 2nd Session) and pursuant to Acts

of their respective Legislatures have, through their

respective Governors, appointed as their Commissioners:

M.C. Hinderlider, for Colorado

George S. Knapp, for Kansas

Wardner G. Scott, for Nebraska

who, after negotiations participated in by Glenn L. Par-

ker, appointed by the President as the Representative of

the United States of America, have agreed on the follow-

ing articles:

“ARTICLE I

“The major purposes of this compact are to provide

for the most efficient use of the waters of the Republican

River Basin (hereinafter referred to as the ‘Basin’) for

multiple purposes; to provide for an equitable division of

such waters; to remove all causes, present and future,

which might lead to controversies; to promote interstate

K3

comity; to recognize that the most efficient utilization of

the waters within the Basin is for beneficial consumptive

use; and to promote joint action by the States and the

United States in the efficient use of water and the control

of destructive floods.

“The physical and other conditions peculiar to the

Basin constitutes the basis for this compact, and none of

the States hereby, nor the Congress of the United States

by its consent, concedes that this compact establishes any

general principle or precedent with respect to any other

interstate stream.

“ArnIcLE II

“The Basin is all the area in Colorado, Kansas, and

Nebraska, which is naturally drained by the Republican

River, and its tributaries, to its junction with the Smoky

Hill River in Kansas. The main stem of the Republican

River extends from the junction near Haigler, Nebraska,

of its North Fork and the Arikaree River, to its junction

with Smoky Hill River near Junction City, Kansas,

Frenchman Creek (River) in Nebraska is a continuation of

Frenchman Creek (River) in Colorado. Red Willow Creek

in Colorado is not identical with the stream having the

same name in Nebraska. A map of the Basin approved by

the Commissioners is attached and made a part hereof.

“The term ‘Acre-foot’, as herein used, is the quantity

of water required to cover an acre to the depth of one foot

and is equivalent to forty-three thousand, five hundred

sixty (43,560) cubic feet.

K4

“The term ‘Virgin Water Supply’, as herein used, is

defined to be the water supply within the Basin unde-

pleted by the activities of man.

“The term ‘Beneficial Consumptive Use’ is herein

defined to be that use by which the water supply of the

Basin is consumed through the activities of man, and

shall include water consumed by evaporation from any

reservoir, canal, ditch, or irrigated area.

“Beneficial consumptive use is the basis and princi-

ple upon which the allocations of water hereinafter made

are predicated.

“ArTicteE III

“The specific allocations in acre-feet hereinafter made

to each State are derived from the computed average

annual virgin water supply originating in the following

designated drainage basins, or parts thereof, in the

amounts shown:

“North Fork of the Republican River drainage basin

in Colorado, 44,700 acre-feet;

“Arikaree River drainage basin, 19,610 acre-feet;

“Buffalo Creek drainage basin, 7,890 acre-feet;

“Rock Creek drainage basin, 11,000 acre-feet;

“South Fork of the Republican River drainage basin,

57,200 acre-feet;

Frenchman Creek (River) drainage basin in

Nebraska, 98,500 acre-feet;

“Blackwood Creek drainage basin, 6,800 acre-feet;

K5

“Driftwood Creek drainage basin, 7,300 acre-feet;

“Red Willow Creek drainage basin in Nebraska,

21,900 acre-feet;

“Medicine Creek drainage basin, 50,800 acre-feet;

“Beaver Creek drainage basin, 16,500 acre-feet;

“Sappa Creek drainage basin, 21,400 acre-feet;

“Prairie Dog Creek drainage basin, 27,600 acre-feet;

“The North Fork of the Republican River in Nebraska

and the main stem of the Republican River between the

junction ! the North Fork and the Arikaree River and the

lowest crossing of the river at the Nebraska-Kansas state

line and the small tributaries thereof, 87,700 acre-feet.

“Should the future computed virgin water supply of

any source vary more than ten (10) per cent from the

virgin water supply as hereinabove set forth, the alloca-

tions hereinafter made from such source shall be

increased or decreased in the relative proportion that the

future computed virgin water supply of such source bears

to the computed virgin water supply used herein.

“ArtTicLe IV

“There is hereby allocated for beneficial consumptive

use in Colorado, annually, a total of fifty-four thousand,

one hundred (54,100) acre-feet of water. This total is to be

derived from the sources and in the amounts hereinafter

specified and is subject to such quantities being physi-

cally available from those sources:

K6

“North Fork of the Republican River drainage basin,

10,000 acre-feet;

“Arikaree River drainage basin, 15,400 acre-feet;

“South Fork of the Republican River drainage basin,

25,400 acre-feet;

“Beaver Creek drainage basin, 3,300 acre-feet; and

“In addition, for beneficial consumptive use in Colo-

rado, annually, the entire water supply of the Frenchman

Creek (River) drainage basin in Colorado and of the Red

Willow Creek drainage basin in Colorado.

“There is hereby allocated for beneficial consumptive

use in Kansas, annually, a total of one hundred ninety

thousand, three hundred (190,300) acre-feet of water. This

total is to be derived from the sources and in the amounts

hereinafter specified and is subject to such quantities

being physically available from those sources:

“Arikaree River drainage basin, 1,000 acre-feet;

“South Fork of the Republican River drainage basin,

23,000 acre-feet;

“Driftwood Creek drainage basin, 500 acre-feet;

“Beaver Creek drainage basin, 6,400 acre-feet;

“Sappa Creek drainage basin, 8,800 acre-feet;

“Prairie Dog Creek drainage basin, 12,600 acre-feet;

“From the main stem of the Republican River

upstream from the lowest crossing of the river at the

Nebraska-Kansas state line and from water supplies of

upstream basins otherwise unallocated herein, 138,000

K7

acre-feet; provided, that Kansas shall have the right to

divert all or any portion thereof at or near Guide Rock,

Nebraska; and

“In addition there is hereby allocated for beneficial

consumptive use in Kansas, annually, the entire water

supply originating in the Basin downstream from the

lowest crossing of the river at the Nebraska-Kansas state

line.

“There is hereby allocated for beneficial consumptive

use in Nebraska, annually, a total of two hundred thirty-

four thousand, five hundred (234,500) acre-feet of water.

This total is to be derived from the sources and in the

amounts hereinafter specified and is subject to such

quantities being physically available from those sources:

“North Fork of the Republican River drainage basin

in Colorado, 11,000 acre-feet;

“Frenchman Creek (River) drainage basin in

Nebraska, 52,800 acre-feet;

“Rock Creek drainage basin, 4,400 acre-feet;

“Arikaree River drainage basin, 3,300 acre-feet;

“Buffalo Creek drainage basin, 2,600 acre-feet;

“South Fork of the Republican River drainage basin,

800 acre-feet;

“Driftwood Creek drainage basin, 1,200 acre-feet;

“Red Willow Creek drainage basin in Nebraska, 4,200

acre-feet;

“Medicine Creek drainage basin, 4,600 acre-feet;

K8

“Beaver Creek drainage basin, 6,700 acre-feet;

“Sappa Creek drainage basin, 8,800 acre-feet;

“Prairie Dog Creek drainage basin, 2,100 acre-feet;

“From the North Fork of the Republican River in

Nebraska, the main stem of the Republican River between

the junction of the North Fork and Arikaree River and the

lowest crossing of the river at the Nebraska-Kansas state

line, from the small tributaries thereof, and from water

supplies of upstream basins otherwise unallocated

herein, 132,000 acre-feet.

“The use of the waters hereinabove allocated shall be

subject to the laws of the State, for use in which the

allocations are made.

“ARTICLE V

“The judgment and all provisions thereof in the case

of Adelbert A. Weiland, as State Engineer of Colorado, et

al, v. The Pioneer Irrigation Company, decided June 5,

1922, and reported in 259 U.S. 498, affecting the Pioneer

Irrigation ditch or canal, are hereby recognized as bind-

ing upon the States; and Colorado, through its duly

authorized officials, shall have the perpetual and exclu-

sive right to control and regulate diversions of water at

all times by said canal in conformity with said judgment.

“The water heretofore adjudicated to said Pioneer

Canal by the District Court of Colorado, in the amount of

fifty (50) cubic feet per second of time is included in and

is a part of the total amounts of water hereinbefore allo-

cated for beneficial consumptive use in Colorado and

Nebraska.

K9

“ArTIcLE VI

“The right of any person, entity, or lower State to

construct, or participate in the future construction and

use of any storage reservoir or diversion works in an

upper State for the purpose of regulating water herein

allocated for beneficial consumptive use in such lower

State, shall never be denied by an upper State; provided,

that such right is subject to the rights of the upper State.

“ArncLte VII

“Any person, entity, or lower State shall have the

right to acquire necessary property rights in an upper

State by purchase, or through the exercise of the power of

eminent domain, for the construction, operation and

maintenance of storage reservoirs, and of appurtenant

works, canals and conduits, required for the enjoyment of

the privileges granted by Article VI; provided, however,

that the grantees of such rights shall pay to the political

subdivision of the State in which such works are located,

each and every year during which such rights are enjoyed

for such purposes, a sum of money equivalent to the

average annual amount of taxes assessed against the

lands and improvements during the ten years preceding

the use of such lands, in reimbursement for the loss of

taxes to said political subdivisions of the State.

“ArricLe VIII

“Should any facility be constructed in an upper State

under the provisions of Article VI, such construction and

K10

the operation of such facility shall be subject to the laws

of such upper State.

“Any repairs to or replacements of such facility shall

also be made in accordance with the laws of such upper

State.

“ARTICLE IX

“It shall be the duty of the three States to administer

this compact through the official in each State who is now

or may hereafter be charged with the duty of administer-

ing the public water supplies, and to collect and correlate

through such officials the data necessary for the proper

administration of the provisions of this compact. Such

officials may, by unanimous action, adopt rules and regu-

lations consistent with the provisions of this compact.

“The United States Geological Survey, or whatever

federal agency may succeed to the functions and duties of

that agency, in so far as this compact is concerned, shall

collaborate with the officials of the States charged with

the administration of this compact in the execution of the

duty of such officials in the collection, correlation, and

publication of water facts necessary for the proper

administration of this compact.

“ARTICLE X

“Nothing in this compact shall be deemed:

“(a) To impair or affect any rights, powers or jurisdic-

tion of the United States, or those acting by or under its

authority, in, over, and to the waters of the Basin; nor to

impair or affect the capacity of the United States, or those

K11

acting by or under its authority, to acquire rights in and

to the use of the waters of the Basin;

“(b) To subject any property of the United States, its

agencies or instrumentalities, to taxation by any State, or

subdivision thereof, nor to create an obligation on the

part of the United States, its agencies or instrumentalities,

by reason of the acquisition, construction, or operation of

any property or works of whatsoever kind, to make any

payments to any State or political subdivision thereof,

state agency, municipality, or entity whatsoever in reim-

bursement for the loss of taxes;

“(c) To subject any property of the United States, its

agencies or instrumentalities, to the laws of any State to

any extent other than the extent these laws would apply

without regard to this compact.

“ARTICLE XI

“This compact shall become operative when ratified

by the Legislature of each of the States, and when con-

sented to by the Congress of the United States by legisla-

tion providing, among other things, that:

“(a) Any beneficial consumptive uses by the United

States, or those acting by or under its authority, within a

State, of the waters allocated by this compact, shall be

made within the allocations hereinabove made for use in

that State and shall be taken into account in determining

the extent of use within that State.

“(b) The United States, or those acting by or under its

authority, in the exercis« of rights or powers arising from

whatever jurisdiction the United States has in, over, and

K12

to the waters of the Basin shall recognize, to the extent

consistent with the best utilization of the waters for mul-

tiple purposes, that beneficial consumptive use of the

waters within the Basin is of paramount importance to

the development of the Basin; and no exercise of such

power or right thereby that would interfere with the full

beneficial consumptive use of the waters within the Basin

shall be made except upon a determination, giving due

consideration to the objectives of this compact and after

consultation with all interested federal agencies and the

state officials charged with the administration of this

compact, that such exercise is in the interest of the best

utilization of such waters for multiple purposes.

“(c) The United States, or those acting by or under its

authority, will recognize any established use, for domes-

tic and irrigation purposes, of the waters allocated by this

compact which may be impaired by the exercise of fed-

eral jurisdiction in, over, and to such waters; provided,

that such use is being exercised beneficially, is valid

under the laws of the appropriate State and in conformity

with this compact at the time of the impairment thereof,

and was validly initiated under state law prior to the

initiation or authorization of the federal program or pro-

ject which causes such impairment.

“IN WITNESS WHEREOF, the Commissioners have

signed this compact in quadruplicate original, one of

which shall be deposited in the archives of the Depart-

ment of State of the United States of America and shall be

deemed the authoritative original, and of which a duly

certified copy shall be forwarded to the Governor of each

of the States.

K13

“Done in the City of Lincoln, in the State of

Nebraska, on the 31st day of December, in the year of our

Lord, one thousand nine hundred forty-two.

“M. C. HInDERLIDER

“Commissioner for Colorado

“GeorGE S. KNAPP

“Commissioner for Kansas

“Warpner G. Scott

“Commissioner for Nebraska

“l have participated in the negotiations leading to

this proposed compact and propose to report to the Con-

gress of the United States favorably thereon.

“GLENN L. PARKER

“Representative of the United States”

Src. 2. (a) In order that the conditions stated in article

XI of the compact hereby consented to shall be met and

that the compact shall be and continue to be operative,

the following provisions are enacted -

(1) any beneficial consumptive uses by the

United States, or those acting by or under its

authority, within a State, of the waters allocated

by such compact, shall be made within the

allocations made by such compact for use in that

State and shall be taken into account in deter-

mining the extent of use with the State;

(2) the United States, or those acting by or

under its authority, in the exercise of rights or

powers arising from whatever jurisdiction the

United States has in, over, and to the waters of

the Basin shall recognize, to the extent consis-

tent with the best utilization of the waters for

K14

multiple purposes, that beneficial consumptive

use of the waters within the Basin is of para-

mount importance to the development of the

Basin; and no exercise of such power or right

thereby that would interfere with the full bene-

ficial consumptive use of the waters within the

Basin shall be made except upon a determina-

tion, giving due consideration to the objectives

of such compact and after consultation with all

interested Federal agencies and the State offi-

cials charged with the administration of such

compact, that such exercise is in the interest of

the best utilization of such waters for multiple

purposes.

(3) the United States, or those acting by or

under its authority, will recognize any estab-

lished use, for domestic and irrigation purposes,

of the waters allocated by such compact which

may be impaired by the exercise of Federal juris-

diction in, over, and to such waters: Provided,

That such use is being exercised beneficially, is

valid under the laws of the appropriate State

and in conformity with such compact at the time

of the impairment thereof, and was validly initi-

ated under State law prior to the initiation or

authorization of the Federal program or project

which uses such impairment.

(b) As used in this section -

(1) “beneficial consumptive uses” has the

same meaning as when used in the compact

consented to by Congress by this Act; and

(2) “Basin” refers to the Republican River

Basin as shown on the map attached to and

made a part of the original of such compact

deposited in the archives of the Department of

State.

K15

Passed the Senate April 19 (legislative day, April 16),

1943.

Attest: EDWIN A. HALSEY,

Secretary.

Ll

APPENDIX L

[Letterhead partially omitted]

STATE OF COLORADO

ENGINEERING DEPARTMENT

DENVER

January 9, 1943

SUBJECT:

Honorable Ralph L. Carr

Governor of Colorado

State Capitol Building

Denver, Colorado

My dear Governor Carr:

I have the honor to transmit herewith, for your con-

sideration and further disposition, an original draft of a

compact apportioning the waters of the Republican River

Basin between the States of Colorado, Kansas and

Nebraska, which was consummated at Lincoln, Nebraska,

on December 31, 1942, by the Commissioners appointed

by the Governors of the signatory States, pursuant to

authority from the Legislatures of these States to negoti-

ate an Interstate Compact to equitably apportion the

waters of the Republican River Basin.

This Compact replaces the Compact which was rat-

ified by the Legislatures of Colorado, Kansas and

Nebraska, in 1941, and which, by appropriate Act,

received the approval of the Congress of the United

States, but which Act was vetoed by the President for the

reason that he felt the Compact did not adequately recog-

nize and protect the interests of the United States.

L2

The Compact herewith transmitted, was negotiated

pursuant to not only the aforementioned authority of the

Legislatures and Governors of the signatory States, but

also to Pub. 696-77th Congress, Chapter 545, 2nd Session

(Senate 2604) granting authority to the States to enter into

a Compact, which Act also provided for the appointment

by the President of a representative of the United States

to participate in said negotiations, and to make report to

the Congress of the proceedings, and of any compact

entered into.

Pursuant to this authorization by Congress the Presi-

dent designated Mr. Glen L. Parker, Chief Hydraulic

Engineer of the United States Geological Survey, as the

Federal representative, who, later by unanimous action of

the three State Commissioners, was made Chairman of

the Republican River Compact Commission.

The Commission held two meetings, one at Denver,

Colorado, on December 2nd and 3rd, and one at Lincoln,

Nebraska on December 29, 30, 31, 1942, at the conclusion

of which this Compact was signed.

These two meetings of the Commission, presided

over by the Federal representative, were participated in

by Honorable Gail L. Ireland, Attorney General of Colo-

rado, and Clifford H. Stone, Director of the Colorado

Water Conservation Board; by representatives of the

Attorneys General of Kansas and Nebraska, and also by

representatives of the U.S. Departments of Agriculture,

Interior and War. Also present was a representative of the

National Resources Planning Board.

The draft of the Compact, herewith transmitted, does

not in any way change the allocations of water to the

L3

signatory States provided for in the former Compact. The

only material changes in the new draft are of a legal

nature, and were made in an attempt to compose conflicts

between the fundamental rights and powers of the Fed-

eral Government arising out of the navigation clause of

the Constitution of the United States as interpreted by

decisions of the United States Supreme Court, and the

rights and vital interests of the signatory States in the

consumptive use of the waters of the Republican River

and its tributaries essential to the full development of the

Basin.

It is believed that the Compact as signed equitably

apportions between the signatory States the waters of the

Basin for beneficial multiple use purposes, recognizes

and protects existing uses of waters therein, and recog-

nizes that the most efficient utilization of the waters

within the Basin is for beneficial consumptive purposes.

it is believed that this Compact, when operative, will

promote the orderly development of the land and water

resources of the Basin, including the regulations of

destructive floods, and will protect any agency of the

Federal Government in the acquirement of water rights

under the laws of the signatory States, and also the

authority of the Federal Government to regulate the

waters of the Basin in the interest of navigation, should

such need arise in the future.

The compact allocates for beneficial consumptive use

in Colorado, annually, a total of 54,100 acre feet of water

from the following sources and in the following amounts:

From the North Fork of the Republican River Drain-

age Basin, 10,000 acre feet.

L4

From Arickaree River Drainage Basin, 15,400 acre

feet

From the South Fork of the Republican River Drain-

age Basin, 25,400 acre feet.

From Beaver Creek Drainage Basin, 3,300 acre feet,

and, in addition, the entire water supply of the drainage

basins of Frenchman and Red Willow Creeks in Colorado.

This allocation constitutes about 23 percent of the

entire average annual water supply of the North Fork of

the Republican River; 80 percent of that of the Arickaree

River, 77 percent of that of the South Fork of the Republi-

can River, and an estimated 100 percent of the waters of

Beaver Creek Basin in Colorado, which it is believed is

the limit of ultimate consumptive use which it is possible

to make in Colorado of the waters of these stream basins.

These allocations include not only surface, but also

sub-surface, or underground water supplies.

It should be borne in mind that these allocations of

waters are for beneficial consumptive use, and do not

limit the right of Colorado or any of its people or entities

to divert and apply much greater quantities of water than

the amounts allocated by the Compact.

It will be noted that Article XI of the Compact

includes the specific language to be used by the Congress

in giving its consent to and approval of the actions of the

signatory States, which constitutes a definite recognition

on the part of the Congress, of the paramount importance

of the use of the waters of the Basin in the development

of multiple purpose projects which will involve the con-

sumptive use of the waters therein, and also constitutes a

LS

recognition on the part of the Congress of any established

use for domestic and irrigation purposes of the waters

allocated by the Compact when such use is a valid one

under the laws of the appropriate State.

A more detailed report will be presented later for the

information of the Legislature.

In conclusion, I desire to express to you my deep

sense of appreciation for the confidence reposed in me as

the official representative of our State to carry out these

important negotiations, and for the invaluable assistance

from you, as Governor, and from Attorney General Ire-

land and Judge Clifford H. Stone.

Respectfully submitted,

/s/ M. C. Hinderlider

Republican River Compact

Commissioner for Colorado

MCH J

Mi

APPENDIX M

[Titles condensed; recitation of the Compact omitted]

Explanatory Statement and Report

to the

Thirty-fourth General Assembly

by

M.C. Hinderlider,

Republican River Compact Commissioner

for Colorado

There is herewith submitted to the General Assembly of

the State of Colorado, with recommendation for favorable

consideration, a new Republican River Compact. After two

conferences by the Republican River Compact Commission-

ers and their legal advisers, this Compact was signed by the

Commissioners for the States of Colorado, Kansas and

Nebraska, at Lincoln, Nebraska, on the 31st day of Decem-

ber, 1942. The major purposes of this Compact are set forth

in Article I which reads, in part, as follows:

“The major purposes of this compact are to

provide for the most efficient use of the waters

of the Republican River Basin (hereinafter

referred to as the “Basin”) for multiple pur-

poses; to provide for an equitable division of

such waters; to remove all causes, present and

future, which might lead to controversies; to

promote interstate comity; to recognize that the

mvsi efficient utilization of the waters within

the Basin is for beneficial consumptive use; and

to promote joint action by the States and the

United States in the efficient use of water and

the control of destructive floods.”

The negotiation of this Compact by the States of

Colorado, Kansas and Nebraska was authorized by an

Act of the Congress of the United States, approved

August 4, 1942 (Public No. 696 — 77th Congress, Chapter

545 — 2nd Session) which authorized these states “to

M2

negotiate and enter into a compact not later than June 1,

1945, providing for an equitable division and apportion-

ment among the said states of the waters of the Republi-

can and also of its tributaries above its junction with the

Smoky Hill River in Kansas, upon condition that a suita-

ble person, who shall be appointed by the President of

the United States, shall participate in said negotiations as

the representative of the United States and shall make

report to the Congress of the proceedings and of any

compact entered into *** ”

Thereafter and pursuant to their several authorities,

the Governors of each of the signatory States named the

same Commissioners who had been designated to negoti-

ate a former Compact, and the President appointed as the

representative of the United States, Glenn L. Parker, Chief

Hydraulic Engineer of the United States Geological Sur-

vey.

The Commission held its first meeting in Denver,

Colorado, on December 2-3, 1942, when, by unanimous

action of the Commission, Mr. Parker was designated

Chairman thereof. Another, and the final meeting was

held in Lincoln, Nebraska, on December 29, 30, 31, 1942,

following which this Compact was signed by the Com-

missioners and the Federal representative endorsed upon

the Compact the following:

“! have participated in the negotiations

leading to this proposed compact and propose

to report to the Congress of the United States

favorably thereon.

GLENN L. PARKER,

Representative of the

United States.”

M3

Throughout these two conferences the Commissioner

for Colorado was advised on all matters by Attorney

General Gail L. Ireland and Judge Clifford H. Stone,

Director of the Colorado Water Conservation Board,

whose services in this connection were most valuable.

During the negotiations the Commissioners for Kansas

and Nebraska were advised by representatives of the

Attorneys General of those two states. Prior to the attach-

ment of the signatures of the Commissioners to this Com-

pact, the Governors of each of the signatory states were

fully advised of the conclusions reached by the Commis-

sioners, and approved the same.

The Legislatures of Colorado, Kansas and Nebraska,

in 1941, ratified a former Compact allocating the waters

of the Republican river basin. That Compact was later

approved by the Congress of the United States. The Act

providing for Congressional approval, however, was vet-

oed by the President. The veto message of the President

set forth, in substance, that the Compact failed to ade-

quately protect the interests of the United States. This

situation arose out of the inclusion in Article I of the

former Compact the following language:

“The Republican River and tributaries

thereof within the basin, as hereinabove

defined, are not navigable, and all uses of water

of a consumptive nature, as hereinafter defined,

wherever such uses may occur within the basin,

shall constitute paramount uses.”

The Federal Power Commission with support, in

varying degree, from other Federal agencies, strenuously

opposed within the Congress, the last mentioned provi-

sion.

M4

Numerous amendments to the approving legislation

were proposed in Congress. The adoption of these

amendments, however, would have constituted material

modifications of that Compact, and would have required

a re-reference of the Compact to the Legislatures of the

signatory states. They were finally defeated, and Con-

gress approved the former Compact without modifying

provisions, but, as stated, the approving legislation was

vetoed by the President.

In general, it should be stated that representatives of

certain Federal agencies contended that the provisions of

Article I of the first Compact, above quoted, created a

dangerous precedent, and were contrary to federal juris-

diction and to the public interest, unless interpreted,

limited and modified by appropriate amendments to be

incorporated in the approving legislation.

Following the abortive effort to obtain final approval

of the former Compact by the Congress, it was believed

by the Commissioners that the uses of the waters of the

Republican River and its tributaries and the inherent

Federal and States’ interests could be correlated in such

way as to permit of the most beneficial use of the waters

of the Basin.

Congressional authorization to make a new Compact

having been obtained, further negotiations followed, as

above outlined.

During these negotiations for a new Compact, repre-

sentatives of the Departments of Agriculture and Interior,

the Corps of U.S. Engineers and the National Resources

Planning Board, were in attendance and contributed

materially in the negotiations of the Commissioners.

M5

This Compact eliminates the objectionable provision

in the former Compact, hereinabove quoted.

Article XI of this Compact, however, is designed to

protect the States’ interests in these waters by a recogni-

tion that the most efficient utilization of the waters within

the Basin is for beneficial consumptive use, and also to

promote joint action by the States and the Federal Gov-

ernment in effectuating such use and for the control of

destructive floods.

It will be noted that this Compact provides that,

unless the Congress of the United States in its approving

legislation includes the provisions set forth in Article XI]

for the protection of the interests of th States, then the

approval would be ineffectual. These protective measures

may be summarized as follows:

1. Any beneficial consumptive uses by the United

States, or those acting by or under its authority, within a

State, of the waters allocated by this Compact, shall be

made within the allocations of water for use within such

State.

2. That the United States, or those acting by or

under its authority, in the exercise of rights or powers

arising from whatever jurisdiction the United States has

in, over, and to the waters of the Basin, shall recognize, to

the extent consistent with the best utilization of the

waters for multiple purposes, that the beneficial con-

sumptive use of the waters within the Basin, is of para-

mount importance to the development of the Basin.

M6

3. That no exercise of Federal jurisdiction over such

waters, that would interfere with the full beneficial con-

sumptive use of the water within the Basin, shall be made

except upon a determination, giving due consideration to

the objectives of this Compact and after consultation with

all interested Federal agencies and State officials charged

with the administration of this Compact, that such exer-

cise is in the interest of the best utilization of such waters

for multiple purposes.

4. That the United States or those acting by or

under its authority, will recognize any established use,

for domestic and irrigation purposes, of the waters allo-

cated by this Compact which may be impaired by the

exercise of Federal jurisdiction in, over, and to such

waters; provided, that such use is being exercised bene-

ficially, is valid under the laws of the appropriate State

and in conformity with this Compact at the time of the

impairment thereof, and was validly initiated under state

law prior to the initiation or authorization of the Federal

program or project which causes such impairment.

In considering this Compact it should be noted that

beneficial consumptive use is the basis and the principle

upon which the allocations of water are made and predi-

cated. Beneficial consumptive use is defined by the Com-

pact in these words:

“The term ‘Beneficial Consumptive Use’ is

herein defined to be that use by which the water

supply of the Basin is consumed thru the activ-

ities of man, and shall include water consumed

by evaporation from any reservoir, canal, ditch,

or irrigated area.”

M7

This definition of “Beneficial Consumptive Use”

must be considered in connection with Article XI of the

Compact. “Beneficial Consumptive Use”, as above

defined, includes the use of water for domestic, irrigation

and industrial purposes. The use of water for these pur-

poses is regulated and controlled under State laws.

The Federal Government claims jurisdiction over the

waters of the Basin for the production of hydro-electric

energy, the maintenance of navigable capacity within and

without the Basin, and in the interest of flood control, all

of which in general, are of a non-consumptive character.

It is believed that the interests of the Federal Govern-

ment and of the signatory States in the waters of the

Basin, are adequately protected and correlated by the

provisions of Article X and XI, and by other provisions of

this Compact.

In its deliberations resulting in the first draft of a

Compact, the commission gave careful consideration to

the report of the Corps of U.S. Engineers dated February

27, 1940, covering its comprehensive study in 1939-1940

of the needs for flood control, including presently irri-

gated and arable areas, water conservation and related

benefits to irrigation, domestic requirements, and power

development. The Commission conferred from time to

time with representatives of the U.S. Bureau of Reclama-

tion which was then engaged in field investigations and

studies of water supply, irrigated and arable areas within

the Basin, the development of which would require the

consumptive use of the waters of the Republican river

and its tributaries. During its deliberations the Commis-

sion also conferred with representatives of the Bureau of

M8

Agricultural Economics of the U.S. Department of Agri-

culture which had just completed a field study and volu-

minous report on the underground water resources of the

Basin and the availability of the same for future develop-

ments therein. While the absence of extensive develop-

ment of the natural resources of the Basin tended to

simplify the problem of allocating the waters thereof, the

Commission was confronted with other difficult prob-

lems involving a multiplicity of primary and secondary

tributary stream systems which are largely disassociated

in their possibilities for use, and which, due to their

erratic character, will require the construction of exten-

sive regulatory works throughout the Basin. A careful

evaluation by the Commission, of the total available

water supplies of the Basin, based upon the preceding

eleven years during which period fairly reliable records

of stream flow are available, and of the results of the

studies by the Corps of U.S. Engineers, U.S. Bureau of

Reclamation and Bureau of Agricultural Economics, with

respect to irrigated and arable areas, disclosed that the

virgin water supplies of the Basin when regulated by

storage reservoirs are, in general, ample to meet all pre-

sent and future requirements for domestic, irrigation and

industrial uses within the Basin, with periodic surpluses

which, when regulated, could be made to serve naviga-

tion needs, if any, outside the Basin.

The Compact allocates for beneficial consumptive use

in Colorado, annually, a total of 54,100 acre-feet derived

from the following sources:

M9

North Fork of the Republican River... 10,000 acre-feet

cove kotwueediux an 15,400 acre-feet

South Fork of the Republican River. .. 25,400 acre-feet

Arikaree River...

EE Se: -edias edict ec weeeew aes .. .3,300 acre-feet

and, in addition, the entire water supply of the French-

man and Red Willow Creek drainage basins in Colorado.

It is specifically pointed out that the above alloca-

tions of water are identical with the allocations made by

the former Compact heretofore approved by the Legisla-

tures of the signatory states; and that such are in no

manner or detail changed by this Compact. In the interest

of clarity, however, it was considered desirable, in this

Compact, to transpose the order in which the determined

basic water supplies of the Basin, and the specific alloca-

tions to each of the three States, was set out in ‘he former

Compact. The only material changes in this Compact,

were made to meet the conflicts between the various uses

of water, and between Federal and State interests in these

waters. These latter changes, as hereinabove explained,

are all of a legal nature.

The foregoing allocations constitute about 23 percent

of the total water supply of the North Fork of the Repub-

lican; 79 percent of that of the Arikaree; 44 percent of that

of the South Fork of the Republican; and 100 per cent of

that of the Beaver, Frenchman and Red Willow Creek

drainage basins in Colorado. It should be borne in mind

that these allocations of water do not limit the right of

Colorado or any of its agencies to divert and apply much

larger quantities of water than the amounts allocated by

the Compact.

M10

Particular attention is called to Article I of this Com-

pact which provides in part as follows:

“The physical and other conditions peculiar

to the Basin constitute the basis for this com-

pact, and none of the States hereby, nor the

Congress of the United States by its consent,

concedes that this compact establishes any gen-

eral principle or precedent with respect to any

other interstate stream.”

It is believed that this Compact equitably apportions

the total available average annual virgin water supplies

of the Basin, both surface and underground, among the

three signatory States, in such manner and in such

amounts as will not only protect all existing uses within

the Basin, but will insure, insofar as possible, that the

available water supplies when regulated by storage

works, will adequately meet future requirements for

domestic, irrigation, industrial and recreational purposes,

and that it affords ample opportunity for multiple use

development and for flood control. It provides for the

collaboration by the U.S. Geological Survey with the

Compact Commissioners of the three States, in the collec-

tion, correlation and publication of water facts necessary

for the proper administration of the Compact.

It is also believed that this Compact, by its recogni-

tion and correlation of the inherent rights of the signatory

States and their entities, and those of the Federal Govern-

ment, provides the sound and constructive basis dictated

by the physical and other conditions peculiar to the

Basin, as mentioned in Article I of this Compact, for the

regulation, control and most beneficial uses of the waters

M11

of the Basin, which uses are of such vital importance to

that arid and semi-arid region.

As Commissioner for the State of Colorado, I, there-

fore, submit this Compact to the 34th General Assembly

of the State of Colorado, for its consideration, and recom-

mend the ratification of the same by your Honorable

body.

M. C. HINDERLIDER,

Republican River Compact

Commissioner for Colorado

N1

APPENDIX N

[Letterhead partially omitted]

STATE OF COLORADO

ENGINEERING DEPARTMENT

DENVER

February 5, 1943

SUBJECT:

Mr. Glen L. Parker

Chief Hydraulic Engineer

U.S. Geological Survey

North Interior Building

Washington, D.C.

Dear Mr. Parker:

For your information I am enclosing two mimmeo-

graph copies of the Republican River Compact, to which

is attached my explanatory statement and report on the

Compact to our General Assembly, which I thought you

might be interested in reading.

Plans have been made for the publication of the

Compact, and my explanatory statement and report, in

pamphlet form, similar to that of the Rio Grande Com-

pact, for distribution among those who may be interested

in the Compact.

I would be pleased to have your observations, criti-

cisms, etc., on my explanatory article.

i furnished a copy of the same to Mr. Knapp and Mr.

Scott. Mr. Scott has just sent me a copy of a Bill intro-

duced in his Legislature for the ratification of the Com-

pact, but as yet I have had no word from Mr. Knapp

concerning the progress in his Legislature.

N2

I note from last night’s press reports that Senator

Burke of Nebraska and Congressman Curtis, have intro-

duced Bills in the Congress for the purpose of obtaining

approval by the Congress of the Compact.

I am interested in hearing from you what progress, if

any, has been made by you with interested Federal agen-

cies in this connection.

I might state also that I furnished Colonel Pick two

copies of the enclosure, and have been advised by both

Colonel Pick and Major Freeman that there is no disposi-

tion on their parts to place any obstructions in the way of

obtaining the consent of the Congress. It is clearly under-

stood, of course, that Colone} Pick is in no way obligated,

as you have heretofore advised me.

We are asking the present Legislature to appropriate

at least the amount of money appropriated last session

for our cooperative stream gaging work, and I hope that

you will be successful in obtaining your usual appropria-

tions at least for carrying on this important work.

With best regards, I am

Sincerely yours,

/s/ M. C. Hinderlider

State Engineer

MCH J]

encls

[Enclosures omitted]

Ol

APPENDIX O

Computation of Virgin Water Supply

Republican River Compact Administration

» ” *

GENERAL PROCEDURES

Reservoir evaporation shall be the total evaporation

corrected for the precipitation upon the reservoir surface

area.

Average monthly reservoir surface areas shall be

computed by applying the average of the mean daily

reservoir elevations to the most recent area-capacity

tables.

Depletions of stream flows due to erosion control

practices and stockwater ponds have not been included

in the present virgin water supply formulas. Representa-

tives of the U. S. Department of Agriculture have indi-

cated there has been no success in isolating the effect of

such practices on stream flow.

Irrigation diversions from ground water shall be lim-

ited to those by wells pumping from the alluvium along

the stream channels. The determination of the effect of

pumping by “table-land” wells on the flows of the

streams in the Republican River Basin must await consid-

erably more research and data regarding the character of

the ground-water aquifers and the behavior of ground-

water flow before even approximate information is avail-

able as to the monthly or annual effects on stream flows.

The ground-water representatives of the Geological Sur-

vey and the University of Nebraska reported that the

effect of pumping by “table-land” wells is not subject to

O2

an exact determination and that it is possible those wells

may not appreciably deplete stream flows. The wells in

the Frenchman Creek drainage basin in Colorado have

been considered as “table-land” wells.

Irrigation diversions by canals, stream pumps and

wells for which recorded diversions are not available

shall be computed by applying an average annual diver-

sion rate to the irrigated acreages.

Return flows from the lands irrigated by major pro-

ject developments flowing into two or more designated

drainage basins shall be divided in the ratio of the irri-

gated lands from which the water returns to each drain-

age basin.

Return flows are considered to be reflected in stream

discharge records during the same year the irrigation

diversions are made.