Amicus Curiae Brief — Kansas v. Nebraska and Colorado (No. 220126-ORG)
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No. 126, Original
In the Supreme Court of the Anited-States
STATE OF KANSAS, PLAINTIFF
v.
STATE OF NEBRASKA
AND
STATE OF COLORADO
ON MOTION TO DISMISS
BRIEF FOR THE UNITED STATES
AS AMICUS CUBIAE IN OPPOSITION TO THE
MOTION TO DISMISS
SETH P. WAXMAN
Solicitor General
Counsel of Record
Lois J. SCHIFFER
Assistant Attorney General
EDWIN S, KNEEDLER
Deputy Solicitor General
JEFFREY P. MINEAR
Assistant to the Solicitor
General
ANDREW F. WALCH
EDWARD A. BOLING
Attorneys
Department of Justice
Washington, D.C. 20580-0001
(202) 514-2217
QUESTION PRESENTED
Whether the Republican River Compact restricts a com-
pacting State’s consumption of groundwater.
(I)
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Statement
TABLE OF CONTENTS
A. The Republican River Basin ..0..............cccccesceeseeeeeeeees
B. The compact approval process ...............cscesesseeeeeesees
C. The Republican River Compact ....0.........:ccccceeeseeeeenes
). Post-compact development ................:.-ccccecesseeeeneeeeeeees
E. The Current CONLFOVEBY ...........cccccccsssscssccccessvessseseesoeess
I I, ecicscccesensccisnssctatcinennnnssitienincicniinianinitimniasinien
Argument:
The Republican River Compact restricts a State’s
consumption of groundwater that contributes to
the “virgin water supply” of the Republican
I TI cicesteetensnsseesncinsesvsasincerhiniianisanusitbbiabbcsininkalaneiacduinsisammsssiines
A. The Republican River Compact apportions
the virgin water supply, which consists of
stream flows originating from both surface
runoff and groundwater discharge 00.0.0...
B. The Compact requires a State to include
within its allocation of the virgin water
supply groundwater consumption that
diminishes Basin stream flows ...............:.s:.csereceeseeeees
C. Kansas is entitled to relief under the Compact
if it can demonstrate that Nebraska’s com-
sumption of groundwater has resulted in
Nebraska’s exceeding its compact allocation. ............
Conclusion
Addendum
Addendum
Addendum
Addendum
Cases:
EEE EEE EEE EEE EEE EEE EEE EEE EE EEE EEE EEE EEE EE EEE HEHEHE E EEE
EEE EEE EEE EEE EE EEE EEO EE EE EEEE EEE EEE EEE EEEEE EEE EEE RE EEE EE EEE
POUT TCE el
EEE EERE EEE EEE EEE EERE EEE EEE EERE EERE EEEEE TEER EERE EEE EEE EEE EES
COE EEE EEE EERE EEE EEE EEE EERE EEE EEE EEE EEE EEE EEEEEEEE EEE OEE TEE EEE HEHE HS
TABLE OF AUTHORITIES
Air France v. Saks, 470 U.S. 392 (1985) ..0.....ccceeeeeeeeeeeees
Arizona v. California, 292 U.S. 341 (1984) .......cccccceceeee
(IIT)
13
15
19
14
14
IV
Cases—Continued:
Page
Cappaert v. United States, 426 U.S. 128 (1976) ............... 12, 16
Hinderlider v. La Plata River & Cherry Creek
BS Cig, Te Tk Ge CD cecceccccsnescneniscccesncscanccsconeseess 28
Kansas v. Colorado:
Be i ITT ricinstcncoushcinttictpiaheicininiiibeniiilidiinilenaaeaiteeemaanehaenes 18
CI I ie las 29
Be es SII ‘citisccaneanccincdinctensiniadelonmlacssabasncees 14, 24, 25, 29
Nebraska v. Wyoming:
I I I IID ial sescncesencsintienegieibaencbiogeniinaiadnmeenbaiunsibi 27
Se i SI STITT, sors secissarenstenaneenmineineseesiesneibvisassaiiiananesienmnaiibatt 29
EE Cy SIE IIIT. scrrnsitchisienitbigianiaiibidiedibibnianmeapumianeunséemnues 29
Be MA IED ‘Saisciscesssccssiencsestiessecisenisnnntensenstncesin 20, 27, 28, 29, 30
Rs, 0 ID cesisthsreavenenesicasintenitnnnegaecisienbbinmbaniasinines 27, 28, 29, 30
Neitzke v. Williams, 490 U.S. 319 (1989) 0... eee 13
New Jersey v. New York, 523 U.S. 767 (1998) .............-.... 14
Oklahoma v. New Mexico, 501 U.S. 221 (1991) ................ 14
Papsan v. Allain, 478 U.S. 265 (1986) .............cccccccceseeneees 14
Snake Creek Mining & Tunnel Co. v. Midway
Irrigation Co., 260 U.S. 596 (1923) ........ceecceeeseeeeeneeessees 18
Sporhase v. Nebraska ex rel. Douglas, 458 U.S. 941
SITY ‘cosinast lle icchldaedenccsahctekassenineldipnsan cosniplanipsainadioubateseamianainnincaintin 28
Texas v. New Merico:
On os cansersnesnniniesispbmenaiaandaginanainen 29
SM iar ects icteiacestscsis ca cateesegleaibcabanip acnadenaeinaainedanions 24, 26
Or ia taan 14, 24, 25, 30
Se a IIE Sscsnicéciccsbeccisisscscdensseseinnteniateabeninesdiesinihesilitisiiaghalaa 26
SE MI, SE UID pensttieisditiccecsicdiecisacinasensaenipboniescinsdedsie 14, 24, 26, 29
United States v. Alaska:
RRS RAE ASS RS renee ae er erie ee 29
I I I cca et lit ecdal 30
Weiland v. Pioneer Irrigation Co., 259 U.S. 498
SEUEPTUIIEID cavsissiciacsseccasacescsbciehtcsealehitdeii ca emtanahsautaiaihatsaiibleainsitbiaianlinialo 8
Constitution, statutes and rules: Page
U.S. Const. Art. I, § 10, Ci. 3 (Compact Clause) ................. 1,4
Act of Aug. 18, 1941, ch. 377, 55 Sat. 646.000 3
Act of Aug. 4, 1942, ch. 545, 56 Stat. 736 0000.0... cece 5, 6
Arkansas River Compact, ch. 155, 63 Stat. 145 .0000000.0..0...... 24, 25
BR Se OE sncsiicarncsininseiaiiiesnctnsitsnsisaatiadinsinani 25
Flood Control Act of 1944, ch. 665, § 9, 58 Stat. 891 ........... i)
Pecos River Compact, ch. 184, 63 Stat. 159 0... 24, 27
SR, Tig ee HD ccesenitnccsnsenasiecnnsinicsitiintaniiitiadainiinisinidiinins 25, 26
Republican River Compact (Act of May 26, 1943),
i, Te Ce SOP artstitpnaietencinnstenicterstioeenitineninilntneniions 2, 6, la-12a
I clan aiataeaiuncasinasahicaaeeinscaiciiaacabeaaanaiianinaie 6, 20, 21, 2a
Bs HORE centtictisctninnaiansinnseninitiiipcseiintatiniamaniannaniinaieneniniine 22, la
rai: SOUR. sienachchase ccs naaltabbaniedainaa eisai 7, 12, 15, 20, 3a
I ET sceihicclciccicieteiiateistanstiapsitennibiiidiesheiiadiiasiiasdias 2, 15, 3a-7a
Si ic SHI anctenacienecccstasecinneeieiisbehisnpsasniiieciiniaiceiibiusidainihetibhi 7, 4a
a 15, 4a-7a
Feria BE siincsenchieraiiaeienendienaclaichaiitaildenadinialianiiulidaiianpininens 7, 8, 5a
ATG seacernicesesicictininaicuisssceinnsinasseaiieeitininnsatiauieiaaiininaion 8, 7a-8a
I Fe TEE ciisicirieteeniticinditnstcaincibinhiiiahinasioninsninisenitsiiniiiieiiads 8, 7a-8a
Ss UE. Sacidaissitniceaaatisnininisiiccscmaminnanenmnianeatdate 8, 10, 11, 8a
Be seesinaseebailicsive sive necneepeesensceabeeiibeinabdaeibiadesisuinie 8, 17, 9a
I UIE Wihiaiaestasicciilnsciaiaiiessnietsiaaiabalbsaiaibiabdiesbeaiidilcinniidiinin 8, 9a-10a
TA. TAB contensinnssinanteninentnsnepnasesaenessniasinmennsansinmnnennienitaie 8, 9a-10a
Colo. Rev. Stat. Ann. (West):
OB BE-E- BEE oF carte, CHD cnccnesncccnctcccscnscccncsnsccsenesnsosscnsensneiien 6
§§ 37-90-1012 et seg. (Supp. 1996) .......cecccccccsessseeneeeeeeseseees 28
Kan. Stat. Ann.:
By IN ITIIET -sciitiniinndiosshvchininhaianladientnceliceennniiedimnindasitentiadseintininian 28
UTIL ITIITIET ieisiicthiesiihnsiueiiehshlbniihdelisclenliciainpdiecaiaciolie 6
2A Neb. Rev. Stat. App. § 1-106 (1995)... .ccescsssesssseereeres 6
Fed. R. Civ. P. R.:
SEED TIE isesteshdescsdesscnisecinsciesenscnenininiiinnsinscasentesnenenenintdnentiaesiionsiiesinn
Rae ak AIDE oaieerre anaes Penn ue dee een Dee eR oe ET
Vi
Miscellaneous:
Bureau of Agricultural Economics, Dep’t of Agriculture,
Water Facilities Area Plan for Upper Republican
River Basin in Nebraska, Kansas and Colorado
OEY TUE Ot achiccssssnsssaisisnaiebucetienlitiesibeitsehianeisiitnianniaiepbasaapbesiiaciausdenanis
Bureau of Reclamation, U.S. Dep’t of Interior:
Project Investigation Report No. 41 (1940) ........cee
Resource Management Assessment: Republican
dt fk eee
Charles E. Corker, Groundwater Law, Management
and Administration, National Water Commission
EG | RRA CRE RE Wort eee sone er ee
Colorado Water Conservation Board, The Republican
River Compact (1943) (available from the U.S.
Geological Survey Libr., Dep’t of the Interior:
ee ee I ects rieriiicesncnctesiniiinianiiciinitnbbdninmpenteneriaiiows
Committee on Procedure & Computation of Annual
Virgin Water Supply, Formulas for the
Computation of Annual Virgin Water Supply
Shs hs SE NUTUIEE : nsalaiinsesediisisicachicas desbsesbdamntaaslabnehigubsnabbaqnitdieminnesiesnion
Se ets Se GID iseniccitensectsneniitmniernininnenniensiinsnnintnéeitinideneiie
87 Cong. Rec. (1941):
i: TUE dictatanicesictaneiavenesitesnubitiinescisiicionnisinensensintenimasoneisneminients
Stir TENET Shnbiscehecachetscivoninsiouesiatsipieabaeieintsiaciiiaiansinsnsianiseesaianisnisinminneniaiaiaiisenies
88 Cong. Rec. (1942):
pp. 2408-2409
iy SEEN IITIEDY asassihooseisccninessionasassteniscineenigipvieeenicminiagumantanenianeniaite
I, SE NEE. seiieveniidesenensasnanniansinseniacsidiinietnnninusinilaeiieneialametiitin
89 Cong. Rec. (1943):
pp. 3549-3551
SRE EEEEEEEEEEEEETEEEEEEEEEEEHEEEEEEEEE EEE EEE EO HET REHHHE Ee
ee ee hee ated
SETTER EEE EEE EEE ESSERE EEE EEE EEE EEE EE EEE EEE EEE EEE EERE EERE HEHEHE EEE
Page
ono
On a
Vil
Miscellaneous:
Engineering Advisory Comm., Pecos River Compact
Comm., Manual of Inflow-Outflow Methods
of Measuring Changes in Stream-F low Depletion
(Dec. 3, 1948), reprinted in S. Doc. No. 109,
Se CE. OIE TI, Gee sertneenttceseninertierneieinsiceticivinencenennn
Flood Control in the Basin of the Republican River:
Hearing on S. 649 Before the Senate Comm. on
Irrigation and Reclamation, 78th Cong., 1st Sess.
CIIIID shscounssisenssitnterbichitteinakeaninciiseadinedininaminanenibiniinienieasutipiiainindmienis
Republican River Compact: Hearings on H.R. 4647
and H.R. 5945 Before the House Comm. on
Irrigation and Reclamation, 77th Cong., lst Sess.
SET IEy sassbskedhieisiihinbei cn ishbiinpeaslaialaeibiealeaaiidecmaawsede
Republican River Compact: Hearings on H.R. 1679
and H.R. 2482 Before the House Comm. on
Irrigation and Reclamation, 78th Cong., Ist Sess.
EEIPUIEEY siisciisvetisenssisnnpiniikdipeiennincigsibniniepintapeaiaindiipeniabeinibenadéaeieeiadiadoies
Robert J. Glennon & Thomas Maddock, III, The
Concept of Capture: The Hydrology and Law of
Stream/Aquifer Interactions, Proceedings of the
438d Annual Rocky Mountain Mineral Law
POSE CPOE cineniictisaitniesenscbinnisaneninunesnniiuiitaniteneieininensanesioeis
Richard S. Harnsberger, Nebraska Ground Water
Problems, 42 Neb. L. Rev. 721 (1963) ..............ccccccceeeeeees
H.R. 5945, 77th Cong., Ist Sess. (1941)... ccccceeeeteeeeee
H.R. 1679, 78th Cong., Ist Sess. (1943) ........ccsscsseecerceeereesees
H.R. 2482, 78th Cong., Ist Sess. (1943) ........cccccseessecesseeenes
H.R. Conf. Rep. No. 1878, 77th Cong., 2d Sess.
RNIN sinsishiaiish ieestniescebeesamniennieiibiinaneinagianininieeniaheminienninadananntnnnetien
H.R. Doc. No. 195, 73d Cong., 2d Sess. (1934) ..........:cceeee
H.R. Doc. No. 842, 76th Cong., 3d Sess. (1940) ............0.0
H.R. Doc. No. 690, 77th Cong., 2d Sess. (1942) 0...
H.R. Rep. No. 2707, 76th Cong., 3d Sess. (1940) .............004.
H.R. Rep. No. 1380, 77th Cong., Ist Sess. (1941) ................
H.R. Rep. No. 375, 78th Cong., Ist Sess. (1943) ............0000.
H.R.J. Res. 406, 76th Cong., 3d Sess. (1940) oe
Page
Vill
Miscellaneous—Continued: Page
Stephen D. Mossman, “Whiskey is for Drinkin’ But
Water is for Fightin’ About”: A First-Hand Account
of Nebraska's Integrated Management of Ground and
Surface Water Debate and the Passage of L.B. 108,
30 Creighton L. Rev. 67 (1996) ...........ccccccccccsssssssessessesseeseess 28-29
Glenn L. Parker, The First Republican River
Compact (1943) (available from U.S. Geological
Survey Libr., Dep’t of the Interior: 798 (200) R 29
___ EEE on oS Lee ee oe IT OT DT eT 4,5
RRCA, First Annual Report for the Year 1960
SIs Nee icintcnnisceiennidtepsnecicsinnssienennenesitinteemennesintenenes 10, 11, 23
RRCA, Formulas for the Computation of Annual
Virgin Water Supply and Consumptive Use,
August 19, 1982 (rev. June, 1990) .0........ccceeeccceeeeee 10, 23, 24
S. 1361, 77th Cong., Ist Sess. (1941) .............ceccccscsssesseeeeeees 4
S. 649, 78th Cong., Ist Sess. (1943) 0... cece eeeceeeeeeeeeeeeneees 6
S. Doc. No. 247, 78th Cong., 2d Sess. (1944) ........ccccccceeeeees g
S. Doc. No. 109, 81st Cong., Ist Sess. (1949) -.00000. 26
S. Rep. No. 841, 77th Cong., Ist Sess. (1941) «0.0.0... 5
S. Rep. No. 152, 78th Cong., Ist Sess. (1943) 0.0.0... cee 6, 21
Harold E. Thomas, The Conservation of Ground
UITIITTT LTT Sncscsiccesin sini indesieenipnasnleninangaaniasiatemesrmemmmeassieisieasisunins 18, 27
Thomas C. Winter et al., Ground Water and Surface
Water: A Single Resource (1998) ...........cscceseseeeeeeees 16-17, 27
C.F. Tolman & Amy C. Stipp, Analysis of Legal
Concepts of Subflow and Percolating Waters, 21
Bis Hs PIII ecinsnccepesconnsqnesnnsinenpmnincsinticsiinctesiessineianni 18
Samuel C. Wiel, Need of Unified Law for Surface
and Underground Water, 2 S. Cal. L. Rev. 358
STIITET <cccccthnpessaenescesessestsiannebtstoastenbiiciahabicinshinantndeesdaupinascanienssonipentinias 18
Jn the Supreme Court of the Gnited States
No. 126, Original
STATE OF KANSAS, PLAINTIFF
Vv.
STATE OF NEBRASKA
AND
STATE OF COLORADO
ON MOTION TO DISMISS
BRIEF FOR THE UNITED STATES
AS AMICUS CURIAE IN OPPOSITION TO THE
MOTION TO DISMISS
INTEREST OF THE UNITED STATES
The United States has a significant interest in the inter-
pretation of the Republican River Compact. The States of
Colorado, Kansas, and Nebraska entered into this Compact
to apportion an interstate stream and to provide the basis
for orderly planning and development of federal flood control
and irrigation projects. Federal officials participated in the
formulation of the Compact, and Congress ultimately ap-
proved the Compact pursuant to the Compact Clause of
the Constitution, Art. I, § 10, Cl. 3. This Court invited the
Solicitor General to express the views of the United States
in response to Kansas’s motion for leave to file a bill of
complaint, 119 S. Ct. 36 (1998), and the United States urged
the Court to grant Nebraska leave to file a motion to dismiss
in order to resolve the central issue of whether the Compact
(1)
2
restricts a compacting State’s consumption of groundwater.
See U.S. Amicus Br. 16-20 (Dec. 1998).
STATEMENT
The State of Kansas has filed an original action to enforce
its rights under the Republican River Compact, which was
approved by Congress in the Act of May 26, 1943, ch. 104, 57
Stat. 86. See Add. la-12a. The Compact allocates the “virgin
water supply” of the Republican River Basin for use within
the States of Colorado, Kansas, and Nebraska. See Compact
Arts. II-IV (Add. 3a-7a). Kansas alleges that Nebraska has
exceeded its Compact allocation by allowing pumping and
consumption of groundwater that should be included as part
of the allocated water supply. See Compl. para. 7; Br. in
Support of Compl. 2. Nebraska has denied that allegation,
see Neb. Answer para. 7, and has additionally argued, among
other defenses and counterclaims, that the Compact does not
restrict Nebraska’s right to consume groundwater, id. para.
18. With the leave of this Court, Nebraska has filed a motion
to dismiss, in the nature of a motion under Rule 12(b)(6) of
the Federal Rules of Civil Procedure, limited to the question
whether the Republican River Compact restricts a State’s
consumption of groundwater. See Neb. Br. in Support of
Mot. to Dis. (Neb. Br.).
A. The Republican River Basin
The Republican River Basin is a 24,900 square mile water-
shed, approximately 430 miles in length, that encompasses
parts of northeastern Colorado (7700 square miles), south-
western Nebraska (9700 square miles), and northern Kansas
(7500 square miles). The Basin is drained by the Republican
River, which is formed by the junction of two streams that
originate in Colorado, the Arikaree and North Fork Re-
publican Rivers. From that originating point, near Haigler,
Nebraska, the Republican River flows easterly through
Nebraska and then southeasterly to Junction City, Kansas,
3
where it joins the Smoky Hill River to form the Kansas
River. The Republican River Basin also includes numerous
smaller streams that flow into the Republican River. The
Basin, which is part of the Great Plains, is sparsely popu-
lated. It contains fertile farmland and typically receives
from 18 to 30 inches of precipitation per year. See Bureau of
Reclamation, U.S. Dep’t of Interior, Resource Management
Assessment: Republican River Basin 3-6, 43, 44-48 (July
1996) (A copy of this report has previously been lodged with
the Clerk of the Court.).
During the 1930s, the United States, as well as the States
of Colorado, Kansas, and Nebraska, developed an interest in
harnessing the water resources of the Republican River
Basin. The Basin had experienced an extended drought,
interrupted in 1935 by a deadly and destructive flood. In
light of those experiences, the federal and state governments
examined whether the Republican River’s spring flows could
be impounded in reservoirs for flood control and released in
the late summer and fall for irrigation. See H.R. Doc. No.
842, 76th Cong., 3d Sess. (1940) (Corp of Engineers’ pre-
liminary examination and survey of the Republican River);
see also H.R. Doc. No. 195, 73d Cong., 2d Sess. 158-186
(1934) (Corps of Engineers’ preliminary examination and
survey of the Kansas River, discussing irrigation potential] in
the Republican River Basin). Based on the Corps of
Engineers’ recommendations in House Document No. 842,
Congress authorized appropriations to construct the Harlan
County Reservoir, in Nebraska, for flood control purposes.
See Act of Aug. 18, 1941, ch. 377, 55 Stat. 646.
The Interior Department’s Bureau of Reclamation, which
has primary responsibility for irrigation projects, also
studied the Republican River Basin, relying in part on the
Corps of Enginneers’ examination set forth in House
Document No. 195, supra. See Bureau of Reclamation, U.S.
Dep’t of Interior, Project Investigations Report No. 41, at 1-
2 (1940). The Bureau concluded that federal irrigation pro-
4
jects were feasible. Jd. at A-D (Synopsis). It indicated, how-
ever, that those projects should not be constructed until the
three States had resolved the question of interstate alloca-
tion of the Basin’s water resources. /d. at 1 (“To avoid
expensive litigation as a result of possible conflicting wses of
water in the various states, further developments for irri-
gation should be preceded by a three-state compact or other
similar agreement on use of water.”). Meanwhile, the States
of Colorado, Kansas, and Nebraska, which had been discuss-
ing the possibility of an interstate agreement for a number of
years, entered into negotiations to formulate an interstate
compact.’
B. The Compact Approval Process
In 1941, the States completed their negotiations and rati-
fied a proposed compact, which they then submitted to
Congress for approval in accordance with the Compact
Clause of the Constitution, Art. I, § 10, Cl. 3. See S. 1361,
77th Cong., Ist Sess. (1941); H.R. 5945, 77th Cong., Ist Sess.
| The States initially sought congressional authorization to enter into
a compact before they had negotiated its terms. See H.R. J. Res. 406, 76th
Cong., 3d Sess. (1940); see also 86 Cong. Rec. 58 (1940) (remarks of Rep.
Curtis). The Department of War objected on the ground that Congress
should not give its consent to a compact without knowing its content, and
the House Committee on Flood Control responded by amending House
Joint Resolution 406 to require congressional approval before the compact
could take effect. See H.R. Rep. No. 2707, 76th Cong., 3d Sess. (1940).
That resolution, however, did not pass, and the States entered into
negotiations without advance congressional authorization or direct parti
cipation by the federal government. See 87 Cong. Rec. A2179 (1941)
(remarks of Rep. Curtis). The state representatives met eight times
between May 28, 1940, and March 19, 1941, to formulate a compact. See
Glenn L. Parker, The First Republican River Compact (1943) (collecting
minutes of the first through eighth meetings of the Compact
Commissioners) (available from the U.S. Geological Survey Library, Dep’t
of the Interior: 798(200) R29 1943). We have reprinted the minutes of
those eight meetings in Addendum B of this brief. See Add. 13a-42a. See
also note 2, infra.
5
(1941); S. Rep. No. 841, 77th Cong., Ist Sess. (1941). The De-
partment of the Interior and the Federal Power Commission
objected to the compact primarily because it contained
language curtailing federal jurisdiction over the Republican
River. See Republican River Compact: Hearings on H.R.
4647 and H.R. 5945 Before the House Comm. on Irrigation
and Reclamation, 77th Cong., Ist Sess. 1-4 (1941) (H.R. 4647
Hearings).
The House Committee on Irrigation and Reclamation
amended the House bill in response to the federal agencies’
objections, H.R. Rep. No. 1380, 77th Cong., Ist Sess. (1941),
but the Senate rejected the House amendments, 87 Cong.
Rec. at 9606-9623. The Senate’s proposed legislation pre-
vailed in conference, and the Senate and the House approved
the conference proposal. See H.R. Conf. Rep. No. 1878, 77th
Cong., 2d Sess. (1942); 88 Cong. Rec. at 2408-2409; id. at
2813-2814. The President, however, vetoed the bill on
the basis of the federal agencies’ objections. See id. at 3285-
3286; H.R. Doc. No. 690, 77th Cong., 2d Sess. (1942) (veto
message). The President explained that he “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.” Jd. at 2.
Following the President’s veto, Congress enacted legisla-
tion authorizing state commissioners to conduct further com-
pact negotiations and providing for participation by a federal
representative. See Act of Aug. 4, 1942, ch. 545, 56 Stat. 736.
The state commissioners and the federal representative,
Glenn L. Parker, met on two additional occasions and com-
pleted their negotiations on December 31, 1942.7 The
2 See Colorado Water Conservation Board, The Republican River
Compact (1943) (collecting minutes of the ninth and tenth meetings of
the Compact Commissioners) (available from the U. S. Geological Survey
Library, Dep’t of the Interior: 798(200) R29 1943). We have reprinted the
6
revised compact retained the water allocations of the
previous compact, but added new provisions addressing the
federal interests. Compare Add. la-12a with H.R. Doc. No.
690, supra, at 2-5. The state legislatures of Colorado,
Kansas, and Nebraska promptly ratified the proposed com-
pact. See Colo. Rev. Stat. Ann. §§ 37-67-101 et seg. (West
1990); Kan. Stat. Ann. § 82a-518 (1991); 2A Neb. Rev. Stat.
App. § 1-106 (1995). The States then submitted the agree-
ment to Congress for approval in accordance with the
Compact Clause and the Act of Aug. 4, 1942. Congress held
hearings, reported favorably on the proposed compact, and
passed a bill granting congressional approval, which the
President signed. Act of May 26, 1943, ch. 104, 57 Stat. 86."
C. The Republican River Compact
The Republican River Compact consists of eleven articles
that set out a mechanism for dividing the water supply of the
Republican River Basin and address issues arising from the
prescribed allocation.
Article I identifies the purposes of the Compact as follows:
(1) “to provide for the most efficient use of the waters of the
Republican River Basin”; (2) “to provide for an equitable
division of such waters”; (3) “to remove all causes, present
and future, which might lead to controversies”; (4) “to pro-
mote interstate comity”; (5) “to recognize that the most
minutes of those two meetings in Addendum B of this brief (Add. 13a-80a).
See Add. 43a-80a. See also note 1, supra.
3 See S. 649, 78th Cong., Ist Sess. (1943); H.R. 1679, 78th Cong., Ist
Sess. (1943); H.R. 2482, 78th Cong., Ist Sess. (1943); Flood Control in the
Basin of the Republican River: Hearing on S. 649 Before the Senate
Comm. on Irrigation and Reclamation, 78th Cong., Ist Sess. (1943) (S.
649 Hearing); Republican River Compact: Hearings on H.R. 1679 and
H.R. 2482 Before the House Comm. on Irrigation and Reclamation, 78th
Cong., Ist Sess. (1943) (H.R. 1679 Hearings); S. Rep. No. 152, 78th Cong.,
ist Sess. (1943); H.R. Rep. No. 375, 78th Cong., 1st Sess. (1943); 89 Cong.
Rec. 3549-3551 (1943) (Senate passage); id. at 4534-4536 (House passage);
id. at 4907 (Presidential approval).
7
efficient utilization of the waters within the Basin is for
beneficial consumptive use”; and (6) “to promote joint action
by the States and the United States in the efficient use of
water and the control of destructive floods.” Add. 2a.
Article II clarifies the meaning of relevant terms. It de-
fines the “Basin” as “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,” and incorporates by reference a map
showing the Basin. Add. 3a. Article II defines the “Virgin
Water Supply” to be “the water supply within the Basin
undepleted by the activities of man.” Jbid. And it
correspondingly defines “Beneficial Consumptive Use” to be
“that use by which the water supply of the Basin is
consumed through the activities of man.” Jbid.
Article III next specifies the “computed average annual
virgin water supply” of a series of specific drainage areas
within the Basin, which in aggregate amount to a total esti-
mated water supply of 478,900 acre-feet per year. Add. 4a.
Those computed averages, expressed in acre-feet of water,
represent the historic virgin water supply originating above
“the lowest crossing of the [Republican River] at the
Nebraska-Kansas state line.” Jbid. The Compact relies on
those historic water supply averages as the basis for
allocating future supplies among the States. Article III
recognizes, however, that year-to-year flows may vary, and
it accordingly states that “(sJhould 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 allocations hereinafter made from such source shall
be increased or decreased” proportionately. bid.
Article IV sets out the allocation for use in each State,
expressed in acre-feet per year, for each of the drainage
areas that Article III identifies. Add 5a-7a. Article IV
allocates the entire estimated virgin water supply set forth
in Article III, giving Colorado an aggregate of 54,100 acre-
8
feet per year (Add. 5a), Kansas an aggregate of 190,300 acre-
‘eet per year (Add. 5a-6a), and Nebraska an aggregate of
234,500 acre-feet per year (Add. 6a-7a). In addition, Article
IV recognizes that Kansas is entitled to “the entire water
supply originating in the Basin downstream from the lowest
crossing of the river at the Nebraska-Kansas state line.”
Add. 6a.
Articles V through IX set forth various rights and obliga-
tions relating to the allocation. Add. 7a-8a. Article V re-
cognizes the continuing vitality of a prior judgment of this
Court, Weiland v. Pioneer Irrigation Co., 259 U.S. 498
(1922), which involved a dispute between Colorado and a
Nebraska irrigation district over the district’s diversion of
water in Colorado for use in Nebraska. See Add. 7a.
Articles VI through VIII allow a downstream Sta‘e (or its
citizens) to construct water storage facilities in an upstream
State, provided that certain conditions are observed. See
Add. 7a-8a. Article [X obligates the States to administer the
Compact through appropriate officials and “to collect and
correlate through such officials the data necessary for the
proper administration of the provisions of this compact.”
Add. 8a. It also provides that those officials “may, by
unanimous action, adopt rules and regulations consistent
with the provisions of this compact,” and it directs the
United States Geological Survey to assist state officials in
the collection and correlation of data. Add. 8a.
Articles X and XI address issues of federal authority that
had prompted the President’s veto of the previous compact
proposal. Add. 9a-10a. Article X states that nothing in the
Compact shall (a) impair federal rights, power, or juris-
diction over waters of the Basin; (b) subject the United
States to state taxes or require the United States to
reimburse the States for lost tax revenues resulting from
federal water development projects; or (c) subject any
property of the United States to state law that would not
apply in the absence of the Compact. Add. 9a. Article XI
9
provides, in essence, that (a) any beneficial consumptive use
by the Uaited States within a State shall be charged against
the State’s compact allocation; (b) when exercising its
paramount powers, the United States shall recognize, to the
extent consistent with the best utilization of the waters for
multiple purposes, that beneficial consumptive use is of
paramount importance to the development of the Basin; and
(c) the United States will respect valid, pre-existing bene-
ficial consumptive uses. Add. 9a-10a.
D. Post-Compact Development
After approving the Compact, Congress authorized a
system of federal water development and management pro-
jects as part of the Missouri River Basin Development
Program. See Flood Control Act of 1944, ch. 665, § 9, 58
Stat. 891. This Program, also known as the Pick-Sloan Plan,
authorizes the Army Corps of Engineers and the Bureau of
Reclamation to construct and operate a coordinated system
of reservoirs for multiple purposes, including irrigation, flood
control, power development, fish and wildlife protection, and
recreation. See S. Doc. No. 247, 78th Cong., 2d Sess. (1944).
Between 1945 and 1964, the United States constructed
nine federal reservoirs in the Republican River Basin. The
Corps of Engineers completed the previously authorized
Harlan County Reservoir in Nebraska (see page 3, supra)
and the Milford Reservoir in Kansas. The Bureau of
Reclamation established four water resource development
divisions, which include seven reservoirs in Kansas and
Nebraska. The Bureau’s projects, operated in conjunction
with the Corps’ Harlan County facilities, provide water to
six irrigation districts and service 136,528 acres of farmland
in the Republican River Basin. Those projects and the
Corps’ Harlan County and Milford projects also support a
variety of other purposes, including flood control, recreation,
and fish and wildlife needs. See Resource Management
Assessment: Republican River Basin, supra, at 4-5, 13-23.
10
E. The Current Controversy
The Republican River Compact imposes limitations on the
quantity of water that Colorado and Nebraska may divert
from the Republican River and its tributaries, based on an
apportionment of the “virgin water supply.” In accordance
with Article IX of the Compact, the States have designated
officials to administer the Compact’s allocation limits.
Beginning in 1959, the States each appointed a repre-
sentative to a three-member administrative body, desig-
nated the Republican River Compact Administration
(RRCA), to compute the Basin’s annual virgin water supply,
which would in turn allow the States to determine, retro-
spectively, whether each State has stayed within its annual
allocation. See RRCA, First Annual Report for the Year
1960 (Apr. 4, 1961). The RRCA has since published and
updated formulas for computing the virgin water supply and
consumptive use. See RRCA, Formulas for the Computa-
tion of Annual Virgin Water Supply and Consumptive Use,
August 19, 1982 (rev. June 1990) (Formulas).
Since 1959, the States have debated the extent to which
groundwater usage should be included in determining
whether a State has exceeded its allocation. Kansas has
asserted that groundwater usage should be included to the
extent that it reduces the amount of water that would be
available for diversion from the sources identified in the
Compact, either by intercepting groundwater contributions
to the surface flow of the Republican River and its tributar-
ies, or by syphoning water from those sources. As part of its
4 The Compact itself does not establish the RRCA. The three States
created the RRCA to carry out the powers conferred upon them by
Article 1X to administer the Compact through an appropriate official in
each State.
5 Relevant excerpts of the RRCA’s First Annual Report and the
current formulas for calculating the virgin water supply are reproduced in
Addenda C and D. See Add. 81a-102a, 103a-114a.
11
First Annual Report, the RRCA elected to include in its
calculations groundwater that is pumped “from the alluvium
along the stream channels.” Committee on Procedure &
Computation of Annual Virgin Water Supply, Formulas for
the Computation of Annual Virgin Water Supply 3 (Apr. 4,
1961) (Add. 97a). The RRCA decided, however, not to
include at that time pumping from upland areas known as
“table-lands.” Jbid. It concluded that “{t]he determination
of the effect of pumping by ‘table-land’ wells on the flows of
the streams in the Republican River Basin must await con-
siderably 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.” Ibid.
Since publishing its First Annual Report, the RRCA has
been unable to make further progress on the appropriate
treatment of groundwater under the Compact. In recent
years, Kansas and Nebraska have strongly disagreed on the
issue. Because the three-member RRCA can adopt regula-
tions only through “unanimous action,” Compact Art. IX
(Add. 8a), the RRCA has not resolved the dispute. Instead,
it has retained, virtually verbatim, the statement on ground-
water set forth in the 1961 report. See Formulas 7 (Add.
108a). Indeed, apparently as a result of this dispute between
Kansas and Nebraska, the RRCA has ceased to calculate the
virgin water supply and state compliance with allocation
limits. Compare Neb. Br. in Opp. to Compl. 16-17 with Kan.
Reply Br. 7-8; Neb. Counterclaims paras. 13, 20-23.
Kansas seeks relief from this Court. It asserts that
Nebraska has violated the Compact by “allowing the
proliferation and use of thousands of wells hydraulically
connected to the Republican River and its tributaries,”
which has “resulted in the appropriation by the State of
Nebraska of more than its allocated equitable share of the
waters of the Republican River” and has “deprived the State
of Kansas of its full entitlement under the Compact.” Compl.
12
para. 7; see Kan. Br. in Support of Compl. 12-14. Nebraska
argues that Kansas’s complaint should be dismissed because
the Republican River Compact does not restrict a Staie’s
consumption of groundwater. Br. in Support of Mot. to Dis.
5-19.
SUMMARY OF ARGUMENT
Nebraska’s motion to dismiss presents the core legal
question that lies at the heart of this interstate dispute.
Nebraska contends that, because the Republican River Com-
pact does not expressly apportion groundwater, it places no
restriction on a compacting State’s groundwater usage. That
contention is wrong.
The Compact apportions the Republican River Basin’s
virgin water supply by reference to the Basin’s stream flows.
As this Court’s decisions recognize, science has established
that stream flows consist of both surface runoff and ground-
water discharge. See Cappaert v. United States, 426 U.S.
128, 142-143 (1976). That scientific principle was well estab-
lished at the time that Colorado, Nebraska, and Kansas
negotiated the Republican River Compact. Indeed, the
minutes of the Compact negotiations show that the principle
was specifically known to the state representatives who
formulated the Compact.
Kansas is entitled to seek relief under the Compact on the
theory that Nebraska must include within its allocation both
direct diversions of the apportioned stream flows and also
groundwater usage that diminishes those stream flows.
That theory is consistent with the text of the Compact,
which defines the virgin water supply as the “water supply
within the Basin undepleted by the activities of man.” Art.
II (Add. 3a). It would be inequitable, and harmful to the
investment-backed expectations of the downstream States, if
an upstream State could augment its apportionment by
simply intercepting a component of the allocated stream
flows before those flows are measured. The compacting
13
States have demonstrated an understanding, in the course
of administering the Compact, that their apportionments
should take into account groundwater consumption that
affects the virgin water supply. That construction of the
Republican River Compact is consistent with the construc-
tion that this Court has given to the Arkansas River
Compact in Kansas v. Colorado, No. 105, Original, and to the
Pecos River Compact in Tezras v. New Mezico, No. 65,
Original.
Nebraska is accordingly mistaken in contending that the
Republican River Compact places no limitations on ground-
water consumption. Kansas is entitled to relief if it can
demonstrate, as a factual matter, that Nebraska’s consump-
tion of groundwater has resulted in Nebraska’s exceeding its
Compact allocation. A Special Master should be appointed to
address that factual question as well as the other outstand-
ing issues in this original action.
ARGUMENT
THE REPUBLICAN RIVER COMPACT RESTRICTS
A STATE’S CONSUMPTION OF GROUNDWATER
THAT CONTRIBUTES TO THE “VIRGIN WATER
SUPPLY” OF THE REPUBLICAN RIVER BASIN
Nebraska has moved to dismiss Kansas’s complaint based
on Nebraska’s assertion that the Republican River Compact
imposes no limits on a compacting State’s consumption of
groundwater. Nebraska’s motion places before this Court a
discrete and controlling question of law that has precipitated
this original action. That question of law can be resolved at
this preliminary stage of the litigation through the applica-
tion of familiar principles of compact construction.®
6 For purposes of this motion, which is in the nature of a motion to
dismiss under Rule 12(b)\(6) of the Federal Rules of Civil Procedure,
Kansas’s factual allegations are assumed to be true. See, ¢.g., Neitzke v.
Williams, 490 U.S. 319, 326-327 (1989). As Nebraska correctly notes (Neb.
14
The Republican River Compact is a congressionally
authorized interstate agreement and is therefore both a
contract and a law of the United States. See New Jersey v.
New York, 523 U.S. 767, 811 (1998); Oklahoma v. New
Mexico, 501 U.S. 221, 235 n.5 (1991); Texas v. New Mezico,
482 U.S. 124, 128 (1987). As with other interstate compacts,
if the text, read in light of its context, is unambiguous, it is
conclusive. See, e.g., New Jersey v. New York, 523 USS. at
811; Kansas v. Colorado, 514 U.S. 673, 690 (1995); Texas v.
New Mexico, 462 U.S. 554, 567-568 (1983). If the text is am-
biguous, the Court may consider other reliable indicia of the
parties’ intent, including the minutes of the compact negotia-
tions and materials submitted to Congress in support of
congressional approval. See e.g., Oklahoma v. New Mexico,
501 U.S. at 235 n.5; Texas v. New Mexico, 462 U.S. at 568
n.14; Arizona v. California, 292 U.S. 341, 359-360 (1934).
The Court may also consider the parties’ practical construc-
tion and application of the Compact’s terms. See, e.g., Air
France v. Saks, 470 U.S. 392, 396 (1985); New Jersey v. New
York, 523 U.S. at 830-831 (Scalia, J., dissenting).
Nebraska has correctly recognized that the Court’s “first
and last order of business” here is interpreting the Republi-
can River Compact. Neb. Br. 6 (quoting New Jersey v. New
York, 523 U at 811). Nebraska is mistaken, however, in its
understandiug of the compact’s terms. Nebraska argues
that the Compact places no restriction on Nebraska’s con-
sumption of groundwater because: (1) the Compact does not
apportion groundwater among the compacting States (Neb.
Br. 5-10); (2) the Court and the parties have manifested an
understanding that the Compact allocates surface water (id.
at 11-15); and (3) the uncontroverted actions of the parties
Br. 5), the Court may also “tak{e) notice of items in the public record.”
Papsan vy. Allain, 478 U.S. 265, 268 n.1 (1986). Those items include the
official minutes of the Compact negotiations and the annual reports of the
RRCA. See Add. 13a-114a.
15
demonstrate that they did not intend to apportion
groundwater (id. at 16-19). Those contentions, however, do
not answer Kansas’s complaint.
Kansas seeks relief on the ground that the Republican
River Compact allocates the “virgin water supply” of the
Republican River Basin, which the Compact measures in
terms of Basin stream flows. See Arts. II-IV (Add. 3a-7a).
The United States agrees with Kansas that those stream
flows necessarily consist of contributions from surface runoff
and groundwater discharge. The Compact accordingly
restricts a State’s consumption of groundwater that dimin-
ishes the virgin water supply, and Kansas can obtain legal
relief under the Compact if it can show, as a matter of fact,
that Nebraska’s groundwater consumption has that effect.
A. The Republican River Compact Apportions The
Virgin Water Supply, Which Consists Of Stream Flows
Originating From Both Surface Runoff And Ground-
water Discharge
The Republican River Compact expressly apportions the
“virgin water supply” of the Republican River Basin, which
the Compact defines as the “the water supply within the
Basin undepleted by the activities of man.” Art. II (Add. 3a).
There is no dispute among the parties that the Compact
measures and allocates the virgin water supply on the basis
of historic annual stream flows, measured in acre-feet per
year. See Arts. III-IV (Add. 4a-7a). The minutes of the
Compact negotiations indicate that the Compact Commis-
sioners calculated the water supply and allocations on the
basis of federal and state stream flow data. See Add. 20a,
21a-24a, 30a-3la. In that limited sense, Nebraska is correct
that the Compact apportions surface water and does not
identify groundwater, in situ, as a separately apportioned
resource. But Nebraska’s claim that the Compact does not
apportion groundwater as such does not respond to Kansas’s
specific complaint.
16
Kansas’s claim for relief is not predicated on the notion
that the Compact directly apportions groundwater, as a
distinct resource, among the compacting States. Kansas
alleges, as the gravamen of its complaint, that Nebraska has
taken more than its designated share of the virgin water
supply by intercepting groundwater that is hydrologically
connected to the flows of the Republican River and its
tributaries. See Kan. Compl. paras. 5-9. Kansas’s complaint
rests on the understanding that stream flows consist of
contributions from surface run-off and from groundwater
discharge. Kansas essentially complains that the Republican
River Basin’s stream flows depend on groundwater con-
tributions and that, if Nebraska intercepts those contri-
butions through groundwater pumping and does not account
for them as part of its Compact allocation, Nebraska will
receive more than its allocated share of the virgin water
supply. Kan. Br. in Support of Compl. 4-5, 8, 12-13.
Kansas’s complaint is based on well-founded hydrological
principles that this Court has previously recognized in
adjudicating water-rights disputes. For example, the Court
ruled in Cappaert v. United States, 426 U.S. 128 (1976), that
the petitioners in that case had unlawfully depleted a
federally reserved pool of surface water in Devil’s Hole
National Monument by pumping groundwater that supplied
the pool. The Court observed that “‘{g]roundwater and
surface water are physically interrelated as integral parts of
the hydrologic cycle.’” Jd at 142 (quoting Charles E. Corker,
Groundwater Law, Management and Administration,
National Water Commission Legal Study No. 6, at xxiv
(1971)). The Court specifically relied on scientific knowledge
establishing that groundwater pumping can diminish surface
pools and stream flows. See id. at 142-143.
Kansas’s complaint, like this Court’s decision in Cappaert,
relies on hydrological principles that have long been common
knowledge among water resource managers. See Thomas C.
Winter et al., Ground Water and Surface Water: A Single
17
Resource (1998) (U.S. Geological Survey (USGS) Circular
1139) (copies lodged with the Court).’ As the USGS has
explained:
Streams interact with ground water in all types of
landscapes. The interaction takes place in three basic
ways: streams gain water from inflow of ground water
through the streambed (gaining stream), they lose water
to ground water by outflow through the streambed
(losing stream), or they do both, gaining in some reaches
and losing in other reaches. For ground water to
discharge into a stream channel, the altitude of the
water table in the vicinity of the stream must be higher
than the altitude of the stream-water surface. Con-
versely, for surface water to seep to ground water, the
altitude of the water table in the vicinity of the stream
must be lower than the altitude of the stream-water
surface.
Id. at 9 (parenthetical references to illustrations omitted).
The USGS notes that “[gjround water contributes to
streams in most physiographic and climatic settings.” /d. at
12. See id. at 13, Fig. B-2 (providing ten examples from dif-
ferent geographic regions of the United States); see also id.
at 38-41 (describing interactions in riverine terrain); 2d. at
57-61 (describing irrigation effects, with special reference to
Nebraska).* Numerous scientific and legal sources, including
7 The USGS’s views are especially significant, because Article IX of
the Compact provides that the USGS “shall collaborate with the officials
of the States charged with 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 the compact.” Add.
8a.
8 For simplicity of discussion, we assume that the streams within the
Republican River Basin are “gaining” streams and that groundwater
pumping could intercept groundwater discharge to streams. In doing 80,
we do not mean to preclude the possibility that the Republican River
Basin may include “losing” streams and that groundwater pumping could
18
sources contemporaneous with and pre-dating the Republi-
can River Compact, recognize those basic hydrological
axioms. See, e.g., Snake Creek Mining & Tunnel Co. v.
Midway Irrigation Co., 260 U.S. 596, 598 (1923); Kansas v.
Colorado, 206 U.S. 46, 114-115 (1907).
Indeed, Kansss relies on science that was not only well
established at the time the Compact was approved, but was
also specifically made known to the state commissioners who
negotiated the Compact and calculated the virgin water
supply. The minutes of the Compact negotiations record
that, on January 27-28, 1941, the commissioners met with
Harry P. Burleigh, of the United States Bureau of Agri-
cultural Economics, who was preparing a study “to deter-
mine 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.” Add. 28a. The
minutes reveal that
{uJpon 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 developments must be considered as
affect the virgin water supply by increasing the loss of stream flow into a
groundwater aquifer.
9 See also, e.g., Robert J. Glennon & Thomas Maddock, III, The
Concept of Capture: The Hydrology and Law of Stream/Aquifer Inter-
actions, in Proceedings of the 48d Annual Rocky Mountain Mineral Law
Institute 22-2 to 22-14 (1997); Charlies E. Corker, Groundwater Law,
Management and Administration, National Water Commission Legal
Study No. 6, at xxiv, 58 (1971); Richard S. Harnsberger, Nebraska Ground
Water Problems, 42 Neb. L. Rev. 721, 722-726 (1963); Harold E. Thomas,
The Conservation of Ground Water 136-138 (1951); C.F. Tolman & Amy C.
Stipp, Analysis of Legal Concepts ° Subflow and Percolating Waters, 21
Or. L. Rev. 113, 115-125 (1942); Samuel C. Wiel, Need of Unified Law for
Surface and Underground Water, 2 S. Cal. L. Rev. 358, 359-363 (1929).
19
reducing to that extent the amount of surface water
available for use within the basin.
Id. at 29a. Thus, the commissioners were aware that the
calculated stream flows included a groundwater discharge
component and that groundwater pumping could deplete
those stream flows.”
B. The Compact Requires A State To Include Within Its
Allocation Of The Virgin Water Supply Groundwater
Consumption That Diminishes Basin Stream Flows
Kansas contends that, because the Republican River
Compact apportions the virgin water supply by allocating
stream flows that include both surface runoff and ground-
water discharge components, each State must include within
its Compact allocation both direct diversions of the ap-
portioned stream flows and also groundwater usage that
diminishes those stream flows. That proposition is sound for
three related reasons.
1. The text of the Compact indicates that a State’s
allocation of the virgin water supply includes groundwater
consumption that reduces the Basin stream flows. The
Compact defines the virgin water supply as the “water
10 The minutes also reveal that Mr. Burleigh had stated that “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
allotment of water to each state which the Commission may have agreed
upon.” Add. 29a. Three days later, on behalf of the Commission,
Commissioner Knapp of Kansas sent a letter to Mr. Burleigh stating 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.” See Bureau
of Agricultural Economics, Dep’t of Agriculture, Water Facilities Area
Plan for Upper Republican River Basin in Nebraska, Kansas, and
Colorado 307 (June 1941) (reprinting the letter as Appendix VII of the
“Burleigh Report”).
20
supply within the Basin undepleted by the activities of man,”
and it defines the Basin inclusively as “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.” Art. II (Add. 3a).
Under those definitions, a State depletes the virgin water
supply “through the activities of man” if it authorizes
pumping of groundwater by its citizens that diminishes
Basin stream flows. The State should therefore include such
groundwater pumping as part of its Compact allocation.
Contrary to Nebraska’s assertions (Neb. Br. 8), the Com-
pact does not need to apportion groundwater directly, or
even make specific reference to groundwater consumption,
in order to create enforceable restrictions on groundwater
consumption. See Nebraska v. Wyoming, 507 U.S. 584, 592
(1993). The Compact places limits on each State’s consump-
tion of the virgin water supply. If the Republican River
Basin stream flows that comprise the virgin water supply
consist in part of groundwater discharge, and a State allows
its citizens to pump groundwater that reduces those stream
flows, then the State must include that consumption as part
of the State’s allocation. Otherwise, the State will receive
more than its allocated share of the virgin water supply.
The Compact’s express statement of its “major purposes”
bolsters that conclusion. Art. I (Add. 2a). Article I states
that the Compact is intended “to provide for an equitable
division of [the waters of the Republican River Basin].”
Ibid. The States agreed on the Compact allocations on the
understanding that the Basin’s undeveloped stream flows
historically yielded a reliable quantity of water—the virgin
water supply—that would be fairly shared among the States.
If Congress and the compacting States sought 3n equitable
division of the Basin waters, then they coud not have
intended that an upstream State would be entitled to aug-
ment its allocation by simply taking a portion of the virgin
water supply before it reached the stream flow gauges. The
21
Compact division is not equitable if an upstream State can
supplement its allocation at will by simply intercepting a
component of the virgin water supply before it can be
measured.
Article 1 also states that the Compact is intended “to
remove all causes, present and future, which might lead to
controversies” and “to promote interstate comity.” Add. 2a.
It is improbable that the Compact negotiators—who were
aware of the relationship between stream flow and ground-
water discharge (see pages 18-19, supra)—would have con-
sidered the Compact an effective means for avoiding future
controversies if the upstream States remained at liberty to
circumvent the precisely drawn allocations through the
simple expedient of intercepting groundwater contributions.
Congress and the States viewed the Compact as providing a
comprehensive apportionment of all of the Basin’s stream
flows so that the federal government, the States, and
individual water users could engage in orderly planning and
development of irrigation works based on the knowledge of
each State’s water supply. If an upstream State cou!d
increase its allocation, to the detriment of the down-
stream States, through groundwater pumping, downstream
expectations and investments—including congressionally
funded flood control and reclamation projects—could be
placed at risk.”
11 The legislative history of Congress’s approval of the Compact
supports that understanding. See, ¢.g.,S. Rep. No. 152, supra, at 2 (“The
undertaking of irrigation projects in the past, and more so of those
projects yet to be undertaken, depends on the soundness and the stability
of the rights to the use of water in connection therewith.”); S. 649 Hearing
13 (Sen. Butler) (“{T}o bring about that stabilization [of the farms in the
region], the compact must be approved, permitting a legal division of the
waters of the Republican and its tributaries, so that improvements may be
encouraged and made possible.”); id. at 33 (Neb. Compact Comm’r
Wardner G. Scott) (“We, in Nebraska, are very anxious that this compact
be ratified by the Congress, so that an orderly planning and development
22
2. The compacting States have confirmed through
their practical construction of the Compact that, if a State
authorizes groundwater pumping that measurably dimin-
ishes stream flow, those depletions should be charged
against that State’s allocation. The RRCA’s formulas for
computing the Basin’s virgin water supply provide a clear
expression of that understanding. As described above, the
Compact authorizes the States to administer the Compact
through the responsible officers in each State. See pages 8,
10, supra. The States formed the RRCA for that purpose in
1959, when water development had proceeded to a stage that
required formal oversight of Compact complianes The
RRCA’s First Annual Report, issued in 1961 © ded
formulas for computing the virgin water supply. 4 d 94a-
102a. As Nebraska acknowledges (Neb. Br. 18-19), since the
inception of the RRCA, those formulas have taken into
account groundwater pumping “from the alluvium along the
stream channels.” See Add. 97a.
Nebraska suggests (Neb. Br. 18-19) that the RRCA’s
decision to include only alluvial groundwater (viz., ground-
and utilization of the waters of the basin can be had in the near future.”);
id. at 35 (M.O. Ryan, Executive Secretary, Republican Valley Conserva-
tion Association) (“[{I}n the meantime, and before construction of projects
can properly be undertaken which would draw upon water supplies
originating in several States, it will be essential that a legal division of the
waters of the streams be made for all time. * * * By this action, you will
simplify all post-war developments in that fine agricultural area, and spare
the residents limitless litigation and trouble in the years to come.”); H.R.
4647 Hearings 7 (Rep. Carlson) (“The territory that is drained by this
river needs the use of this water and these States thought, by getting
together and working out this compact, they could reach an agreement on
the use of this water so that there would be no conflict as to the con-
striction of the various reclamation projects with any other uses it might
be put to.”); 87 Cong. Rec. at 9610 (Sen. Norris) (“This agreement, if put
into effect, would permit the residents of each of the States in question to
go ahead, with notice as to just how much water may be taken from every
one of the streams.”).
23
water pumped from the alluvium in the valley floor) reflects
the States’ understanding that the Compact, as a matter of
law, excludes consideration of groundwater pumping from
non-alluvial sources that nevertheless affect stream flows in
the Basin. That suggestion is unsound. The RRCA’s First
Annual Report demonstrates that the RRCA was aware
that groundwater pumping from non-alluvial sources could
deplete Republican River Basin stream flows. See Add. 87a-
88a, 90a-9la. The RRCA decided to include only alluvial
groundwater pumping in its virgin water supply formulas
because the RRCA did not have sufficient data, at that time,
to estimate the effects of non-alluvial groundwater pumping.
See ibid.; see also Add. 97a-98a.”
'2 The RRCA’s First Annual Report explains that the RRCA
appointed a Committee on Procedure and Computation of Annual Virgin
Water Supply to develop formulas for computing the virgin water supply.
See Add. 83a-84a. That Committee recognized in its first progress report
that, as a general matter, groundwater use could deplete the virgin water
supply. Add. 90a-9la. It nevertheless recommended that “only the wells
in the valley floor of the main Republican River and of its tributaries be
considered as depleting the water supply of the Republican River, for
present use in the Virgin Flow Formula.” /bid. The Committee reasoned:
Apparently the determination of the effect of pumping by “table-
land” wells on the flow of the streams in the Republican River Basin
must await considerabl[y] more research and data regarding the
character of the groundwater aquifer and the behavior of ground-
water flow before even approximate information is available as to the
monthly or annual effects on steam flow. * * *
Add. 91a; see also Add. 93a (“Any accurate determination of the virgin
water supply in the Republican River Basin is dependent upon a
considerable improvement in obtaining data for diversions by stream
pumps and by pumping of groundwater from wells.”). The Committee
ultimately determined that its formulas should take account of only
groundwater pumping “from the alluvium along the stream channels,”
repeating verbatim its previous observation that the effects of ground-
water pumping from other sources requires “more research and data.”
Add. 97a. See page 11, supra.
24
The RRCA plainly understood that the Compact’s
apportionment of the virgin water supply could place limita-
tions on a State’s consumption of hydraulically connected
groundwater. Since 1961, the RRCA has included in its
calculation of the virgin water supply alluvial groundwater
pumping that depletes Basin stream flows. See Add. 108a
(Formulas). The RRCA’s failure to revise its formulas to
include groundwater pumping from other sources does not
reflect a retreat from the general principle that the RRCA
recognized at its inception, nor does it reflect a consensus
that non-alluvial groundwater pumping has no effect on
stream flows. See Kan. Br. in Support of Compl. 8-9.
Rather, the RRCA has retained the 1961 methodology be-
cause the RRCA can act only through the unanimous action
of the state representatives, and Nebraska has steadfastly
refused to agree to revise the formulas to take into account
the effects of non-alluvial groundwater pumping. See ibid.
3. Finally, there is nothing novel in recognizing that an
interstate compact that apportions stream flows can limit a
compacting State’s groundwater usage. This Court has
twice faced that question. In Kansas v. Colorado, No. 105,
Original, the Court adopted the Special Master’s uncon-
tested recommendation that the Court find that Colorado
had violated the Arkansas River Compact, ch. 155, 63 Stat.
145, through excessive groundwater pumping. 514 U.S. 673
(1995). And in Texas v. New Mezico, No. 65, Original, the
Court issued a series of rulings respecting the Pecos River
Compact, ch. 184, 63 Stat. 159, which reflected the under-
standing that the Compact limited New Mexico’s right to
consume groundwater. See 446 U.S. 540 (1980); 462 U.S. 554
(1983); 482 U.S. 124 (1987). In each of those original actions,
the Compact in question did not expressly apportion
groundwater.
This Court’s decision in Kansas v. Colorado is most
directly on point. The Arkansas River Compact, like the
Republican River Compact, does not explicitly address
25
groundwater. Rather, the relevant Compact provision,
Article IV-D, recites that States may engage in future water
resource development, provided that the waters of the
Arkansas River “shall not be materially depleted in usable
quantity or availability” for water users in the compacting
States. See 63 Stat. 147. The Master recognized the
hydrological relationship between stream flow and ground-
water, see 1 Report of Special Master, No. 105, Original, at
37 (July 1994), and he concluded that the Arkansas River
Compact is intended to prevent “material depletion caused
by any increased consumptive use, including the construc-
tion of new wells or increased levels of pumping from
precompact wells.” Jd. at 108; see also 2 id. at 194. The
Master accordingly recommended that the Court find
Colorado liable for pumping groundwater that materially
depleted the usable flow. /d. at 263. Although Colorado filed
a number of exceptions to the Master’s recommendations, it
did not challenge the Master’s conclusion that the Arkansas
River Compact restricts groundwater consumption that
materially depletes the stream flow. See 514 U.S. at 680-681.
The Court expressly agreed with the Master’s conclusion
that “new wells, the replacement of centrifugal with turbine
pumps, and increased pumping from [pre-Compact] wells all
come within [Article [V-D].” 514 U.S. at 691.
In Texas v. New Mevico, Texas asserted that New Mexico
had violated Article III of the Pecos River Compact, which
states that “New Mexico shall not deplete by man’s activities
the flow of the Pecos River at the New Mexico-Texas state
line below an amount which will give to Texas a quantity of
water equivalent to that available to Texas under the 1947
condition.” 63 Stat. 161. See 462 U.S. at 559-560. Although
the parties joined issue on the meaning of the “1947 con-
dition,” see 446 U.S. at 541, and the proper means for mea-
suring depletions, see 462 U.S. at 571-574, the parties did not
question that New Mexico’s groundwater consumption could
“deplete by man’s activities the flow of the Pecos River at
26
the New Mexico-Texas state line,” 63 Stat. 161; see 462 U.S.
at 557 & n.2, 559, and the methodology that the Court ap-
proved for making that determination took into account
groundwater consumption, see 467 U.S. 1238 (1984); 482 U.S.
at 127-128."
Nebraska suggests (Neb. Br. 10) that this Court’s decis-
ions in Kansas v. Colorado and Texas v. New Mexico have
little relevance because neither Colorado nor New Mexico
challenged the various Masters’ implicit and explicit deter-
minations that the Compacts at issue restricted groundwater
consumption. Those States, however, apparently declined to
challenge those determinations because the challenges would
be of no avail: The Compacts at issue in those cases
18 The Court approved use of a corrected version of the “inflow-
outflow methodology,” which relies on a water balance of inflows to and
outflows from the Pecos River, to calculate Texas's entitlement. 482 U.S.
at 127; 462 U.S. at 571-574. That methodology includes consideration of
groundwater discharge into the Pecos River and groundwater pumping
that depletes the stream flow. See, e.g., 462 U.S. at 558-559 & n.5;
Engineering Advisory Comm'n, Pecos River Compact Comm'n, Manual of
Inflow-Outflow Methods of Measuring Changes in Steam-Flow Depletion,
reprinted in S. Doc. No. 109, 81st Cong., Ist Sess. 149 (1949) (“Everything
that happens in the basin between the index inflow gaging stations and
the outflow station which changes the amount of water depletion
occurring in the basin between those points is measured by the inflow-
outflow method.”); id. at 159 (“change in the inflow-outflow relation can be
used as a measure of additional depletion of groundwater”). The Masters’
reports in No. 65, Original, reveal that the parties recognized that the
groundwater component of the stream flow was a central issue in the case.
See, e.g., Report of Special Master on Obligation of New Mexico to Texas
under the Pecos River Compact 44 (Sept. 7, 1979) (“the heart of this
controversy is the pumping of ground water in New Mexico”); Report and
Recommendations 6 (Sept. 10, 1982) (citing a 1942 report noting that the
Pecos River receives water from “spring and other ground waters”);
Report and Recommendations E-10 to E-15 (Jan. 16, 1984) (consideration
of specific groundwater inflows); Report 35 (July 1986) (noting that “New
Mexico has other means of meeting a delivery obligation than curtailment
of pumpage”).
27
obviously do place limits groundwater consumption.’* The
same is true here. Nebraska has simply taken a position in
this litigation that is inconsistent with the physical realities
of stream-groundwater interactions.”°
C. Kansas Is Entitled to Relief Under The Compact If It
Can Demonstrate That Nebraska’s Consumption Of
Groundwater Has Resulted In Nebraska’s Exceeding
Its Compact Allocation
As the foregoing analysis establishes, Nebraska’s basic
legal challenge to Kansas’s complaint is unsound. Nebraska's
objection that the Republican River Compact does not
apportion groundwater as such (Neb. Br. 6-10) is of no
moment. The Compact does apportion the virgin water
supply, and Kansas is entitled to seek legal relief if Nebraska
has taken more than its allocated share of that supply,
whether through direct diversion or through groundwater
pumping that dimishes stream flows. Nebraska’s objection
14 For example, in the case of the Arkansas River Compact, one
commentator had noted, as early as 1951, that “the flow of the Arkansas
River from Colorado into Kansas is modified substantially by ground-
water development. Although the Arkansas River Compact of 1949 does
not mention ground water, its effective operation depends upon an
adequate knowledge of the ground-water hydrology of the watercourse in
Colorado.” Thomas, supra, at 156. Similarly, in the case of the Pecos
River Compact, the apportionment methodology necessarily requires
consideration of groundwater effects on stream flows. See note 13, supra.
15 Nebraska's position is also inconsistent with the position that it has
taken in Nebraska v. Wyoming, No. 108, Original. In that case, Nebraska
has sued Wyoming, arguing, inter alia, that this Court’s North Platte
Decree, 325 U.S. 665 (1945), which apportions the flow of the North Platte
River but makes no mention of groundwater consumption, nevertheless
restricts Wyoming’s groundwater usage. See 515 U.S. 1, 14 (1995).
Nebraska has taken one view of stream-groundwater interactions when it
is a downstream plaintiff, and a different view when it is an upstream
defendant. Wyoming, for its part, has conceded that “groundwater
pumping in Wyoming can and does in fact deplete surface water flows in
the North Platte River.” Jbid.
28
that the Court and the parties have made reference to the
Compact as an agreement respecting surface water (Neb.
Br. 11-15) is likewise immaterial. There is nothing incon-
sistent between Kansas’s claim for relief and, for example,
this Court’s observation in Sporhase v. Nebraska ex rel.
Douglas, 458 U.S. 941, 959 (1982), that the Republican River
Compact is an “agreement among States regarding rights to
surface water,” because Kansas claims that Nebraska has
depleted surface stream flows through excessive ground-
water consumption. Nebraska’s assertion (Neb. Br. 16-19)
that the States could not have intended to apportion ground-
water is also irrelevant, because Kansas’s complaint does not
depend on whether the Compact apportioned groundwater
in situ."
16 We note, in particular, that there is no merit to Nebraska’s
assertion (Neb. Br. 16) that the compacting States could not have intended
to regulate groundwater consumption because the States, at the time of
the Compact, had not yet subjected their citizens to integrated regulation
of stream flows and groundwater consumption. The Compact negotiators
expressly stated that their deliberations were “guided by [this Court’s
decision in Hinderlider vy. La Plata River & Cherry Creek Ditch Co., 304
U.S. 92, 106 (1938)}, establishing the rights of states to make an equitable
division of the waters of an interstate stream, regardless of its effect upon
the presumably vested interests in either of the signatory states.” Add.
23a. See also Nebraska v. Wyoming, 515 U.S. at 22. Kansas and Colorado
have each enacted legislation providing for integrated regulation. See
Kan. Ann. Stat. § 82a-703 (1989); Colo. Rev. Stat. §§ 37-90-101 et seg.
(West Supp. 1996). By contrast, commentators have noted that Nebraska
has been slow to adopt an integrated management regime. See Glennon &
Maddock, supra, at 22-19 to 22-21; Stephen D. Mossman, “Whiskey is for
Drinkin' But Water is for Fightin’ About”: A First-Hand Account of
Nebraska's Integrated Management of Ground and Surface Water Debate
and the Passage of L.B. 108, 30 Creighton L. Rev. 67 (1996); Harnsberger,
supra, at 741-744. Nebraska’s resistance to adoption of integrated
regulation within its borders should not excuse it from complying with an
interstate compact premised on hydrological! principles underlying such
regulation—particularly where Nebraska has previously sued a neigh-
29
Although Kansas’s complaint is properly founded on the
legal theory that the Republican River Compact can restrict
a compacting State’s consumption of groundwater, Kansas
will be entitled to relief only if it can establish the factual
elements of its claim. In particular, Kansas bears the burden
of showing that Nebraska has in fact diminished the virgin
water supply through groundwater pumping. To make that
showing, Kansas must demonstrate the hydrological connec-
tion between Basin stream flows and groundwater pumping,
and Kansas must establish the net stream flow losses
resulting from groundwater consumption. Those factual
issues, as well as the other outstanding issues in this original
action, should be addressed, in the first instance, by a Special
Master.”
boring State to impose those principles in another interstate apportion-
ment. See Nebraska v. Wyoming, 515 U.S. at 14. See note 15, supra.
17 We note that original actions involving interstate water disputes
have frequently proceeded at a slow pace. See Texas v. New Mezico, No.
65, Original] (motion to file complaint granted in 1975 (421 U.S. 927), decree
entered in 1987 (482 U.S. 124)); Kansas v. Colorado, No. 105, Original
(motion to file complaint granted in 1986 (475 U.S. 1079), remanded for
trial on remedy in 1995 (514 U.S. at 694)); Nebraska v. Wyoming, No. 108,
Original (motion to file petition granted in 1987 (479 U.S. 1051), motions to
amend pleadings granted in part in 1995 (515 U.S. at 4)). The slow
progress may be due, to some degree, to the scope and complexity of the
cases. But inordinate delays have also resulted from the parties’ failure to
define precisely, at the outset of the litigation, the specific issues in
controversy.
The pleadings can play an important role in identifying the issues. To
ensure that the Court maintains control over the scope of the litigation,
the Court should require that a party obtain leave of the Court before
filing counterclaims. See Nebraska v. Wyoming, 515 U.S. at 8-9; see also
481 U.S. 1011 (1987) (granting Wyoming leave to file a counterclaim). The
Court may, of course, direct the Master to make a recommendation
whether proposed counterclaims present appropriate matters for the
exercise of original jurisdiction. See United States v. Alaska, 445 U.S. 914
(1980). The Court may also direct the Master to recommend rulings on
affirmative defenses that are amenable to disposition through traditional
30
CONCLUSION
The motion to dismiss should be denied.
Respectfully submitted.
SETH P. WAXMAN
Solicitor General
Lois J. SCHIFFER
Assistant Attorney General
EDWIN S. KNEEDLER
Deputy Solicitor General
JEFFREY P. MINEAR
Assistant to the Solicitor
General
ANDREW F. WALCH
EDWARD A. BOLING
Attorneys
SEPTEMBER 1999
pre-trial mechanisms, compare Fed. R. Civ. P. 12, 56, as a means of
resolving the dispute or narrowing the issues for trial. See generally
Nebraska v. Wyoming, 515 U.S. at 5-6; 507 U.S. 584 (1993); see also United
States v. Alaska, 503 U.S. 569 (1992) (resolving dispute through summary
judgment on a stipulated record).
The Master should insist that the parties confer at the outset to reach
agreement on a statement of the precise issues that are in dispute. See,
e.g., Report of the Special Master in United States v. Alaska, No. 84,
Original, at 7 & App. A (1996) (describing the parties’ submission of a
“Joint Statement of Questions Presented and Contentions of the Parties”).
That statement can then guide the course of the litigation (including the
scope of discovery) and provide the basis for continuing negotiations
aimed at resolving the controversy. The Court has repeatedly “counseled
States engaged in litigation with one another before this Court that their
dispute ‘is one more likely to be wisely solved by co-operative study and
by conference and mutual concession on the part of representatives of the
States so vitally interested in it than by proceedings in any court, however
constituted.’” Tezas v. New Mexico, 462 U.S. at 575. The Master should
accordingly be receptive to mechanisms, such as consensual mediation,
that may aid the States in reaching a negotiated solution.
ADDENDUM A
Act of May 26, 1943, ch. 104, 57 Stat. 86
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
jurisdiction 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 consent
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 Congress; 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 by the Legisiatures of the
States of Colorado, Kansas, and Nebraska, which compact
reads as follows:
“REPUBLICAN RIVER COMPACT
“The States of Colorado, Kansas, and Nebraska, parties
signatory to this compact (hereinafter referred to as
Colorado, Kansas, and Nebraska, respectively, or in-
dividually as a State, or collectively as the States), having
resolved to conclude 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
(la)
2a
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. Parker,
appointed by the President as the Representative of the
United States of America, have agreed upon the following
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 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
constitute 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.
3a
“Article Il
“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
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.
“The term ‘Virgin Water Supply’, as herein used, is
defined to be the water supply within the Basin undepleted
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 principle
upon which the allocation of water hereinafter made are
predicated.
4a
“Article 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 drainagebasin,
57,200 acre-feet;
“Frenchman Creek (River) drainage basin in Nebraska,
98,500 acre-feet;
“Blackwood Creek drainage basin 6,800 acre-feet;
“Driftwood Creek drainage 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 of the North Fork and 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 allocations here-
inafter 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.
5a
“Article 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 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; and
“In addition, for beneficial consumptive use in Colorado,
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;
“BeaverCreek 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 acre-feet;
6a
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 basinin
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 drainagebasin, 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;
“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 up stream basins otherwise unallocated herein,
132,000 acre-feet.
7a
“The use of the waters hereinabove allocated shall be
subject to the laws of the State, for use in which the alloca-
tions 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 binding upon the
States, and Colorado, through its duly authorized officials,
shall have the perpetual and exclusive right to control and
regulate diversions of water at all times by said cana} 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 allocated for bene-
ficial consumptive use in Colorado and Nebraska.
“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.
“Article 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
8a
granted by Article VI; provided, however, that the grantees
of such rights shall pay to the political subdivisions 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 reim-
bursement for the loss of taxes to said political subdivisions
of the State.
“Article VIII
“Should any facility be constructed in an upper State
under the provisions of Article VI, such construction and 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 [X
“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 administering the
public water supplies, and to collect and correlate through
such officials the data necessary for the proper admini-
stration of the provisions of this compact. Such officials may,
by unanimous action, adopt rules and regulations 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.
9a
“Article X
“Nothing in this compact shall be deemed:
“(a) To impair or affect any rights, powers or jurisdiction
of the Untied 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
acting by or under its authority, to acquire rights in and to
the use of 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 Untied States, its agencies or instrumentalities, by
reason of the acquisition, construction, or operation of any
property or works of whatsoever kind, to make any pay-
ments to any State or political subdivision thereof, state
agency, municipality, or entity whatsoever in reimburse-
ment 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 consented to
by the Congress of the United States by legislation pro-
viding, 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 exercise of rights or powers arising from
10a
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 beneficial consumptive use of the waters
within the Basin is of paramount importance to the develop-
ment of the Basin; and no exercise of such power or right
thereby that would interfere with the full beneficial con-
sumptive 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 domestic
and irrigation purposes, of the waters allocated 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 beneficially, is valid under the laws of
the appropriate State and in conformity with this compact at
that time of the impairment thereof, and was validly
initiated under state law prior to the initiation or authori-
zation of the federal program or project 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 Department of State
of the United States of America and shall be deemed the
authoritative orginial, and of which a duly certified copy
shall be forwarded to the Governor of each of the State.
“Done in the City of Lincoln, in the State of Nebraska, on
the 3ist day of December, in the year of our Lord, one
thousand nine hundred forty-two.
lla
“M.C. HINDERLIDER
“Commissioner for Colorado
“GEORGE S. KNAPP
“Commissioner for Kansas
‘WARDNER G. SCOTT
“Commissioner for Nebraska
“I 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”
Sec. 2(a) In order that the conditions stated in article XI
of the compact hereby consented to shall be met and that the
compact shail 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
determining the extent of use within that 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 consistent with the best utilization of the
waters from multiple purposes, that beneficial con-
sumptive 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 beneficial consumptive use of the
waters within the Basin shall be made except upon a
determination, giving due consideration to the objectives
of such compact and after consultation with all interested
12a
Federal agencies and the State officials 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 established use, for do-
mestic and irrigation purposes, of the waters allocated by
such compact which may be impaired by the exercise of
Federal jurisdiction, in, over, and to such waters:
Provided, That such use is being exercised benefically, is
valid under the laws of the appropriate State and in
conformity with such compact at the time of the impair-
ment thereof, and was validly initiated under State law
prior to the initiation or authorization of the Federal
program or project which causes 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.
Approved May 26, 1943.
13a
ADDENDUM B
Minutes
of
The First Meeting of the Republican River Compact
Commission
Present:
M.C. Hinderlider, Commissioner for Colorado
George S. Knapp, Commissioner for Kansas
A.C. Tilley, Commissioner for Nebraska
also
R.H. Willis, Chief, Bureau of Irrigation,
Water Power and Drainage for the
State of Nebraska, as adviser to
the Commissioner for Nebraska
The Commission met in the office of the State Engineer of
Colorado at 10 A.M., May 28, 1940, for the purpose of giving
consideration to the preliminary report of the Bureau of
Reclamation covering its investigations in the Republican
River basin, which had been released for the confidential
consideration of the Commission.
l4a
The members of the Commission proceeded to review and
discuss this report, which consumed the balance of the day.
Prior to recessing, the Commission agreed that it would be
advisable to invite Mr. Debler of the Bureau of Reclamation
and his assistant, Engineer C.T. Judah, to appear the
following day to explain certain phases of the aforemen-
tioned report.
The Commission re-convened at 9 A.M., May 29th, in the
office of the State Engineer of Colorado, at which time Mr.
Debler and his assistant engineer appeared before it and
explained in considerable detail the report of the Bureau,
which Mr. Debler stated must be considered only a pre-
liminary report.
It was the view of the Commission that an equitable
allocation of the waters of the Republican River system for
beneficial uses, and for the control of floods, may be made
only after a complete study of the needs of the basin
Mr. Debler, therefore, was requested to advise the Com-
mission concerning plans of the Bureau for completing in
greater detail its present work and for correlation of such
studies with those now in progress, or which have been
made, by the Corps of U.S. Engineers. Mr. Debler advised
the Commission that the progress of further studies by the
Bureau would depend upon funds made available by the
Congress for such purpose; that funds anticipated to be
available would be used for the completion by December 31,
1941, of the studies and report on Buffalo and Medicine
Creeks, and the classification of lands below McCook,
Nebraska, and the irrigation phases of the Harlan County
Reservoir.
15a
Mr. Debler advised the Commission that the studies and
report of the Wray Reservoir and the North Fork of the
Republican had been completed.
The Commission is of the opinion that, to enable it to carry
out its purpose, the program of the Reclamation Bureau
should be enlarged to include investigations and reports on
all possible projects for the control and use of the waters of
the Republican River basin.
The Commission requested Engineer Judah to furnish it
with a tabulation of all the reservoirs mentioned in the
preliminary report of the Bureau, showing the maximum
capacity of each of such reservoirs, the capacities allocated
for flood control, irrigation and sedimentation, together with
a preliminary estimate of the cost of constructing the dams
at each of these sites; such information to also include the
location of each of the dams by section, township and range.
Mr. Judah agreed to furnish this information to each member
of the Commission at an early date.
Since the Corps of Engineers has spent some time in
making surveys and studies of the problem of flood control
and other benefits in the Republican River basin, it was the
view of the Commission that each commissioner should have
a copy of any report which has been compiled by the Corps
of U.S. Engineers which might be available for the use of the
Commission. The Commission, therefore, directed a written
request for any and all such reports to Col. C.L. Sturtevant,
Division Engineer, Corps of Engineers, Kansas City.
Thereupon, the Commission adjourned, with the under-
standing that a date for another meeting of the Commission
would be later arranged by mutual agreement.
/s/
/s/
/s/
16a
MC, HINDERLIDER
Commissioner for Colo.
GEORGE S, KNAPP
Commissioner for Kan.
A.C, TILLEY
Commissioner for Nebr.
17a
Second Meeting of Republican River Compact
Commission in the Office of the State Engineer of
Colorado on December 6-7, 1940
Meeting convened at 10 A.M. December 6th.
Present:
M.C. Hinderlider, Commissioner for Colorado
George S. Knapp, Commissioner for Kansas
R.H. Willis, representing A.C. Tilley, Commissioner
for Nebraska
During the morning session, the Commission, after a
general review of basin-wide conditions, as shown by the
report of the U.S. Army Engineers and the preliminary re-
port of the U.S. Bureau of Reclamation, considered proposed
bases upon which a compact might be predicated, these
being:
1. A complete previously prepared plan of basin-
wide development;
2. A plan which would provide for reservations of
water on tributaries for possible future use;
3. A plan which would provide for the approval
currently of proposed projects as they may be
investigated and favorably reported upon by
federal or other agencies, until the entire water
supply is allocated.
18a
While the data available to the Commission at this time is
not sufficient upon which to make a definite determination of
a basin-wide plan of development which might be equitable
to three states, the Commission was of the opinion that
preliminary information on projects in Nebraska and
Kansas, including multiple-use projects on the lower reaches
of streams in Colorado, together with records of stream flow
throughout the basin, is sufficient to warrant the conclusion
that there is reason to believe that the water supply is suffi-
cient to meet the reasonable requirements and opportunities
for development in each state.
The commissioner for Colorado stated that, while rea-
sonably complete information concerning multiple-use pro-
jects in Nebraska and Kansas had been made available by
the U.S. Engineers and Bureau of Reclamation, very little
data has been assembled by these federa}) agencies con-
cerning opportunity for development on the upper tri-
butaries of the Republican River in Colorado, aside from
that of the North Fork or Wray project, and that, unless the
Commission could agree upon the general principle of the
right of each state to the unrestricted use of waters
originating in each state, present lack of data on Colorado’s
needs might preclude the consummation of a compact until
after such information has been made available by the
United States or other agencies. The commissioners for
Kansas and Nebraska objected to such a formula pending
more definite knowledge of the opportunities for develop-
ment in the three states and adequacy of water supplies.
The three commissioners were generally of the opinion
that it is desirable that a compact be prepared in time for the
consideration of the incoming Legislatures of the three
states, but it was agreed that this should not be the con-
trolling factor.
19a
Since the Commission had been previously advised by Mr.
Debler of the U.S. Bureau of Reclamation that it is not the
policy of his department to release reports on individual
projects throughout the basin pending completion of the
basin-wide surveys and studies and release of the final
report, which it is estimated will require at least another
year, at the request of the Commission Mr. Debler advised
that his resident engineer, Mr. Judah, in charge of investi-
gations in the Republican River basin, would be available to
appear before the Commission and supply any current infor-
mation which the Commission might deem of importance in
its deliberations. By prior arrangement, Mr. Judah appeared
at the afternoon session of the Commission and gave a
tentative report of the present status of the investigations in
Nebraska and Kansas, covering land areas and classifica-
tions; water supplies; tentative conclusions concerning con-
sumptive uses of water; the location of the projects which
have been investigated to date and those for which investi-
gations have been completed; and a tentative program of
future investigations. This information was given the
Commission, with the understanding that it was more in the
nature of a progress report covering investigations to date
by the Bureau, and was not to be considered as being con-
clusive.
The Commission questioned Mr. Judah at considerable
length for the purpose of acquiring as complete a picture as
possible of the results of the Bureau’s surveys and studies of
projects in the Republican River basin to date, and a
knowledge of the extent of and time required for the
completion of the Bureau’s studies.
20a
December 7th
The Commission convened at 9:30 A.M. and proceeded to
review the information furnished by Engineer Judah on the
previous day, together with available ~ecords of stream flow,
relative location of arable lands in Kansas and Nebraska, as
disclosed by the Bureau’s investigation, and possible relative
needs and opportunities in each state for water utilization.
These preliminary studies consumed the remainder of the
day.
It is the opinion of the Commission that further time will
be required in which to make individual studies of available
data and, therefore, the Commission adjourned 4:30 P.M.,
with the tentative understanding that it would convene
again at an early date at a place and time to be mutually
agreed upon.
/s/ MLC, HINDERLIDER
Commissioner for Colorado
is)’ GEORGE S, KNAPP
Commissioner for Kansas
/s/ RH, WILLIS
Representing A.C. TILLEY,
Com. for Neb.
Zla
Minutes of the Third Meeting of the
Republican River Compact Comission at
Lincoln, Nebraska
December 30, 1940 to January 2, 1941
The Commission met at 11 o’clock, December 30, 1940 in
the Governor’s Hearing Room at the State House.
Present:
M.C. Hinderlider, Commissioner for Colorado
George S. Knapp, Commissioner for Kansas
R.H. Willis, Representing A.C. Tilley, Commissioner
for Nebraska
F.B. Shaffer, Assistant Engineer, Nebraska
State Planning Board, Technician
Prior to this meeting of the Commission, the three
members thereof had compiled data on stream flow and land
areas in the Republican River basin above Concordia,
Kansas, from all available federal and state records, and had
made certain analyses of these data.
Commissioner Hinderlider proposed the following prin-
ciples which might well be considered as controlling in reach-
ing an agreement with respect to a division of the waters of
the basin between the three states:
22a
1. That all allocations of water be based upon beneficial
consumptive use, which was concurred in by the other
members;
2. Uses of water in the past should constitute a prior and
superior right and requirements of water for the future to
meet domestic, livestock and municipal needs should have
preferred status over the use for any other purpose and
should be so recognized by the terms of the compact. The
members of the Compact Commission were in accord on this
point and were of the opinion that due to the relatively small
demands for such preferential needs, such requirements
need not be considered in making specific allocations of
water for other uses in the respective states;
3. That present available consumptive uses of water in
the basin be recognized in arriving at final allocations of
water between the states, to the end that present uses would
be fully protected, on which point the members of the
Commission were in agreement;
4. That next consideration be given to needs for water to
supplement existing uses within the basin, upon which point
the members of the Commission were in agreement;
5. That any compact should recognize the decisions of the
federal court in the case of Adelbert A. Weiland, as State
Engineer for the State of Colorado, et al, vs. The Pioneer
Irrigation Company, 259 U.S. 498, as binding, not only upon
the citizens and the States of Colorado and Nebraska, but
likewise upon the citizens and State of Kansas. It was
agreed, however, that opinions of the Attorney General of
the three states should be obtained on this point.
23a
6. That in view of the fact that a reclamation project on
the North Fork of the Republican near Wray, Colorado, for
the irrigation of lands in Colorado and Nebraska, has been
approved for construction under the provisions of the Case-
Wheeler Act, and that the report of the U.S. Bureau of
Reclamation has recommended that a compact or under-
standing between the three states, satisfactory to the
Secretary of the Interior, should be had prior to actual
construction of this project, the Commission agreed that the
water required for this project would come well within
tentative allocations of water proposed to be incorporated in
a compact. Commissioner Knapp was of the opinion that such
recognition at this time might establish a dangerous
precedent;
That the Commission’s deliberations be guided by the
decision of the Supreme Court of the United States in the
ease of The La Plata River and Cherry Creek Ditch Co. v.
Hinderlider, 304 U.S. 92, establishing the right of states to
make an equitable division of the waters of an interstate
stream, regardless of its effect upon presumably vested
interests in either of the signatory states. On this proposal,
the Commission was in agreement.
The Commission proceeded to a consideration of such data
and to a revised record of stream flow of the Republican
River and its tributaries, as computed and compiled by
Engineer Shaffer, which work consumed the greater part of
the day.
For the purpose of expediting its analyses of water
supply, present uses and future demands upon the same,
Commissioner Hinderlider presented for consideration a
tentative analysis which he had made and previously
furnished to the other two commissioners. The commis-
sioners proceeded to study this analysis in the light of the
24a
official records of water supply and the recent reports of the
United States Engineers and the U.S. Bureau of Reclama-
tion, and the values of reconstructed stream flow prepared
by Engineer Shaffer.
About 4 o’clock Commissioner Tilley met with the Com-
mission for the remainder of the day, it having been im-
possible for him to meet previously due to prior commit-
ments.
Commissioner Tilley reviewed the findings of the Corps of
U.S. Engineers with respect to the 17 projects investigated
in the Republican River basin by the Corps, both for flood
control and for multiple purposes, including reclamation. Mr.
Tilley was strongly of the opinion that all of the needs
thruout the basin should be considered as a whole or as a
unit, and that the difference between estimated benefits and
costs for any project should be spread over other projects
that the studies by the department had shown would not be
economically justified by themselves alone.
The members of the Commission were of the same
opinion, and it was agreed that the views of the Commission
should be transmitted to the Corps of Engineers, with the
request that a re-study of the projects thruout the basin
should be predicated upon this principle.
Recess was taken at 5:30 P.M.
December 31, 1940
The Commission reconvened at 9:30 A.M. and continued
its study of the analysis of water supply and required uses
from the preceding day, which consumed the entire day.
25a
Recess was taken at 5:00 P.M.
January 1, 1941
The Commission resumed at 10:00 A.M. its studies of the
preceding day and continued until 3:00 P.M.
Recess was taken then until 9:00 A.M. January 2nd.
January 2, 194]
The Commission resumed at 9:00 A.M. its analysis of
water supplies and demands thereon. This preliminary
study was concluded at 3 P.M., at which time computations
with respect to tentative allocations of water had been
completed, with the understanding, however, that such com-
putations were subject to possible changes.
The Commission was of the opinion that adjustments with
respect to factual] data are necessary to final allocation of the
waters of the basin, and the drafting of a compact for the
consideration of the water users, legal advisers of the
members of the Commissioners, and the Governors of the
respective states. The final revision of figures did not
appear possible until further studies have been made.
Accordingly, the Commission adjourned following a courtesy
call upon Governor Cochran, with the understanding that the
members would give immediate attention to the further
study of available data, and would arrange to meet again at
Topeka, Kansas, at an early date, tentatively fixed as
January 13, 1941.
26a
isi) MC, HINDERLIDER
Commissioner for Colorado
/si/ GEORGE 5S, KNAPP
Commissioner for Kansas
// A.C, Tilley by R.H. WILLIS
Commissioner for Nebraska
27a
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 Commission to
express their views concerning needs for water develop-
ments and water conservation in the Republican River basin
in Nebraska and Kansas.
Don P. Postlethwaithe, attorney for St. Francis, Kansas,
who talked on the needs of the valley in that section of the
state;
M. O. Ryan, representing a number of organizations in the
Republican River valley in Nebraska and Kansas, who spoke
in behalf of the needs of the residents in the area repre-
sented by him;
28a
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 basis of the Republican River.
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 Commission 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 confident, would be
approved by the water users thruout the basis.
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
Commission 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 basis 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 determinations of
water supply and available land areas, limits of pumping lift,
limits of cost per acre used in his determinations and many
other factors. He also presented the Commission with a
tabular statement showing estimated amounts of under-
ground water available in the various basins in the Re-
publican 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.
29a
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 recommend
developments 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 understanding concerning the scope of future
developments within the basin, both of surface and under-
ground waters, which would not be overlapping 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
surface water available for use within the basin.
At the afternoon session, Engineer Ware of the U. S.
Engineers Office at Kansas City appeared, at the invitation
of the Commission, and discussed present progress of the
studies and reports on flood control and multiple use projects
in the Republican River basin. Mr. Ware advised the Com-
mission that, in conformity with former understanding of the
30a
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 pro-
jects, 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 de-
partment expects to give consideration to data furnished 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 available to the Corps
before June 1, 1941, since the supplemental report of the
Corps of Engineers cannot be delayed later than that date.
January 28, 194]
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 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 concerning past uses of
Sla
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 consideration 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 con-
clusions until the tentative draft could receive further study
and approval of the Attorneys General 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 10th of February.
isfy MC, HINDERLIDER
Commissioner for Colorado
is) GEORGE S, KNAPP
Commissioner for Kansas
si) WARDNER G, SCOTT
Commissioner for Nebraska
32a
Minutes of the Fifth Meeting of the Republican
River Compact Commission at Denver, Colorado,
February 10-12, 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, Neb-
raska
The Commission met at 9:30 A. M. February 10th.
The first item of business was the correction and approval
of the minutes of the third and fourth meetings of the
Commission.
The Commission then proceeded to a reconsideration of
reconstructed stream flow and tentative allocations of water
for consumptive uses throughout the Basin, and the pre-
paration of a revised schedule of allocations of water.
The Commission then proceeded to the consideration of a
final draft for a compact, which consumed the balance of the
day.
33a
Recess was taken at 5 P. M., with the understanding that
the Commission would not reconvene until 1:30 P M.
February 11th, to permit Commissioner Hinderlider to
attend a conference of water users at Ft. Lupton.
February 11
The Commission convened at 1:30 P. M. and resumed
consideration of a final draft for a compact, which work
consumed the balance of the day.
Adjournment was taken at 5:30 P. M.
February 12
The Commission convened at 9:30 A. M. and spent the
entire forenoon in completing the final draft for a compact
for the consideration of the legal advisers of the
Commissioners
Commissioner Scott and Mr. Willis were compelled to
leave soon after noon, and it was agreed that Commissioners
Hinderlider and Knapp would prepare a new tabulation of
reconstructed stream flow and allocations of water, in
accordance with the values set up in the draft for a compact,
with the exception of the values relating to acreages and
uses of water on the South Fork of the Republican River.
This latter matter was to be held in abeyance until
Commissioners Knapp and Hinderlider could make a trip
over the lower reaches of the Republican River Basin in
Colorado and western Kansas, to obtain further information
concerning irrigated areas. It was agreed that this field
investigation would be made on February 17th and 18th.
34a
The final draft for a compact was prepared at this meeting
and each commissioner agreed to refer the same at once to
the Governors of their respective states for early con-
sideration, and to submit the same to representatives of the
water users.
There being no further business, the Commission
adjourned at 12:30 P. M., with the understanding that it
would convene again on February 21st at Lincoln, Nebraska.
Commissioner for Colorado
isi GEORGE S. KNAPP
Commissioner for Kansas
is) WARDNER G, SCOTT
Commissioner for Nebraska
35a
Minutes of the Sixth Meeting of the Republican
River Compact Commission at Lincoln, Nebra [sic},
February 21-22, 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
Gail L. Ireland, Attorney General of Colorado
Warden Noe and
Eldon Wallingford, Attorneys representing the
Attorney General of Kansas
John Riddell, Assistant Attorney General of
Nebraska
The Commission proceeded at once to the consideration of
suggested changes in the wording of the last draft for a
compact as they were presented by the three commissioners
and their legal advisers, which continued throughout the
day.
Adjournment was taken at 5 P. M.
36a
February 22
The Commission resumed its discussions at 9:30
A. M., covering proposed changes in the last draft for a
compact, which continued throughout the entire day.
Substantial agreement was reached on amendments to
Articles I to V, inclusive, and Articles IX to XIII, inclusive.
Since its was apparent that further consideration for other
articles of the last draft would require further extended
study and it being necessary for Commissioner Hinderlider
to attend a meeting of the Rio Grande Compact Commission
at Santa Fe on February 24th, the Commission adjourned
this meeting with the understanding that it would convene
again on March 3, 1941, at Lincoln or possibly Denver.
isi) M,C, BINDERLIDER
Commissioner for Colorado
isi) GEORGE S, KNAPP
Commissioner for Kansas
is) WARDNER G, SCOTT
Commissioner for Nebraska
37a
Minutes of the Seventh Meeting of the Republican
River Compact
Commission at Lincoln, Nebraska, March 3-7, 1941
The Commission met in the office of the State Engineer of
Nebraska at 10 A. M., March 3rd:
Present:
M. C. Hinderlider,
George S. Knapp,
Wardner G. Scott,
R. H. Willis,
Gail L. Ireland,
Eldon Wallingford,
John Riddell,
Commissioner for Colorado
Commissioner for Kansas
Commissioner for Nebraska
Chief, Bureau of Irrigation, Water
Power and Drainage, Dept. of
Public Works, Nebraska
Attorney General of Colorado
Attorney representing the
Attorney General of Kansas
Assistant Attorney General of
Nebraska
The Commission proceeded to consider Article by Article
the last tentative draft for a compact in the light of federal
and state law, the method of allocations used by the
Commission and the re-phrasing of certain sections of the
compact, all of which consumed the entire day.
March 4
The Commission resumed its deliberations from the
preceding day, which continued throughout the day.
March 5
The Commission consumed the entire day with a
continuation of its deliberations initiated on March 3rd.
March 6
The entire day was confined to a continuation of the work
of the previous days of this session and in making certain
minor revisions of former allocations of water.
March 7
The Commission resumed its labors at 10 A. M. in the
form of a further tentative draft for a compact insofar as the
same could be completed at this session, since it appeared
necessary that further opportunity for discussion past uses
of water in the South Fork of the Republican River was
necessary to a final conclusion of the compact.
The Commission adjourned with the understanding that
Commissioners Hinderlider and Knapp would meet at
Denver on March 17th with Senator Ragan and Attorney
Don Postlethwaithe, to consider the aforementioned matters
rela- to the waters ui the Republican River, and that the
Commission thereafter would meet in Denver, March 18th
for the purposes of completing, if possible, the final draft and
the signing of a compact.
39a
/si) MC, HINDERLIDER
Commissioner for Colorado
isi GEORGES. KNAPP
Commissioner for Kansas
is) WARDNER G, SCOTT
Commissioner for Nebraska
40a
Minutes of the Eighth, and Last, Meeting of the
Republican River Compact Commission at
Denver, Colorado, on March 18-19, 1941
Prior to the meeting of the Compact Commission at 9:30
A.M. March 18th, Commissioner Hinderlider and Knapp met
in the office of the State Engineer of Colorado with Senator
Ragan of Colorado, and Attorney Don. P. Postlethwaithe,
representing water users in the St. Francis Valley in
Kansas, to consider the question of past and present uses of
water in the basin of the South Fork of the Republican River
in Colorado and Kansas, at which time Mr. Postlethwaithe
presented maps and other records of appropriations of water
out of the South Fork of the Republican River in Kansas, on
file in the County Court House at St. Francis, as evidence of
past uses of water in that area. Commissioner Hinderlider
presented tabulations of decrees covering appropriations of
water out of the South Fork of the Republican River in
Colorado.
At this conference Attorney General Ireland of Colorado,
and Assistant Attorney General John Riddell of Nebraska,
were present a portion of the time. This entire discussion
related to the question of an equitable division of the water
supply of the South Fork of the Republican between the
states of Colorado and Kansas, and lasted the entire day of
March 17th.
4la
March 18
The Commission met in the office of the State Engineer of
Colorado at 9:30 A. M.
Present:
M. C. Hinderlider, Commissioner for Colorado
George S. Knapp, Commissioner for Kansas
Wardner G. Scott, Commissioner for Nebraska
Gail L. Ireland, Attorney General of Colorado
John Riddell, Assistant Attorney General of
Nebraska
The Commission proceeded to a further consideration of
previous tentative allocations of water out of the South Fork
of the Republican River, concerning which the Commission
was not in agreement at its last meeting in Lincoln,
Nebraska.
These discussions, together with a review of former
tentative allocations of water throughout the basin, con-
sumed the entire day. Senator Ragan was present for a
limited time both in the morning and in the afternoon.
A final agreement on allocations of water throughout the
basin was reached at 4:30 P. M.
The Commission then called upon Governor Carr, follow-
ing which adjournment was taken at 5:00 P. M., subject to
convening on the morning or March 19th.
March 19
The Commission convened at 9:30 A. M. and proceeded to
prepare the final typed draft of the Compact in quad-
ruplicate original, which four original copies were signed by
the Commission at 4:30 P. M., Marvh 19, 1941.
Each commissioner received one original which is to be
conveyed to the Governor of his state with his written
recommendation that the Compact, if approved by his
Governor, be transmitted promptly to the Legislature of his
respective state with his recommendations for favorable
action thereon.
Commissioners Knapp and Scott authorized and re-
quested Commissioner Hinderlider to transmit to Governor
Carr the first original draft of the compact, with the request
that he in turn transmit the same to the proper federal
department at Washington, pursuant to the provisions of the
compact.
ls) M,C, HINDERLIDER
Commissioner for Colorado
isi) GEORGES. KNAPP
Commissioner for Kansas
Is)’ WARDNER G, SCOTT
Commissioner for Nebraska
43a
Minutes of the Ninth Meeting of the Republican
River Compact Commission
at Denver, Colorado, on December 2, 1942.
Present:
M. C. Hinderlider, Commissioner for Colorado
Geo. S. Knapp, Commissioner for Kansas
Wardner G. Scott, Commissioner for Nebraska
G. L. Parker, Representative of the United
States
The Republican River Compact Commission met in room
243 of the State Capitol Building, December 2, 1942. At
11:30 a.m. Mr. M. C. Hinderlider called the meeting to order
and made an opening statement reviewing the history of the
matter since the draft of a compact was signed at Denver on
March 19, 1941 by the Commissioners of the three states.
He pointed out that thereafter the Compact was ratified by
the Legislatures of the three states, that it was submitted to
the Congress and in due time approved, and that the Act of
Congress was later vetoed by the President of the United
States; that subsequently the Congress passed a Bill giving
its consent to the states of Colorado, Kansas and Nebraska
to negotiate a new Compact upon the condition that a
person, to be appointed by the President of the United
States, should participate with the states as the repre-
sentative of the United States. In conformity with that
authority he said that the President had appointed Mr.
44a
Glenn L. Parker, Chief Hydraulic Engineer, U. S. Geological
Survey, as the Representative of the United States.
Following Mr. Hinderlider’s statement, Mr. Knapp
proposed that the three state Commissicners concur in a
request that Mr. Parker be the presiding officer during these
negotiations. The proposal received unanimous approval of
the three states and Mr. Parker assumed the position of
Chairman of the Commission. Mr. Parker then made the
proposal that Mr. Knapp be asked to act as secretary which
he consented to do.
Mr. Parker then said:
“I had rather expected Mr. Hinderlider to tell you
about the informal meetings of the commission that were
held here during the time that the National Reclamation
Association had its annual meeting in Denver, I believe
October 14-16. The Commission did not organize then,
but discussed in general terms what might be
appropriate. Inasmuch as the states had already con-
sidered the Compact, and the Legislatures had ratified
the original Compact, the three state representatives
thought that the first step would be for the Federal
representative to arrange for a redraft of the Compact in
language that would cover the interest of the Federal
government, inasmuch as the Compact had presumably
been vetoed because the Federal interests were not
protected by the original Compact. Accordingly with
the help of Mr. Howard R. Stinson, attorney to the
Bureau of Reclamation, who has followed the events
leading up to our present meeting very closely, a new
draft of the Compact was prepared and submitted
first to the Federal agencies involved. Those Federal
agencies were the Department of Agriculture, Bureau of
45a
the Budget, Federal Power Commission, Department of
Interior, and the War Department.”
“The redraft of the Compact was transmitted to each
of those agencies by a letter dated November 4th.”
“The redraft was not submitted to state representa-
tives then because it was thought that we could get in
quickly from the Federal representatives any changes
that might be desired to protect Federal interests and
revamp the draft, if necessary, before submitting to
state representatives with the end in view of causing as
little confusion as possible by having to consider several
editions. That procedure did not work out well because
it was very difficult to get clearance from the Federal
agencies. Prompt action was taken by Ernest H.
Weicking of the Department of Agiculture.”
“On November 19, the Compact was transmitted to
the state Commissioners by letter in which it was indi-
cated that clearance had been received from the
Department of Agriculture, Federal Power Commission,
and Department of the Interior, except for minor
changes in language with no important issues involved.”
“The statement in that letter that the Federal Power
Commission had given clearance, was based on a tele-
phone conversation between me and Mr. Leland Olds,
Chairman of the Federal Power Commission, approxi-
mately November 17th, during which he assured me the
Federal Power Commission had cleared the redraft and
that a letter would be received by me in a few days to
that effect. It was not until 4:30 p.m. on the afternoon
of November 30th, that I received a letter from the
Federal Power Commission, which suggested that the
46a
language relating to “beneficial consumptive use” as a
paramount use be eliminated from the Compact.”
Mr. Parker:
Before we go farther it might be desirable to ask each
state representative and for the Federal representative to
indicate what persons have been chosen to advise them. Mr.
Hinderlider will you please lead off?
Mr. Hinderlider:
Mr. Gail L. Ireland, Attorney General of Colorado, is the
official legal advisor of the Commissioner for Colorado. Mr.
Clifford H. Stone, Director of the Colorado Water Con-
servation Board, will be one of my legal advisers. Mr. Jenn
Breitenstein, who is also a legal advisor to the Colorado
Water Conservation Board, will be considered on the legal
staff of the Commissioner for Colorado. Mr. Charles Patter-
son, the Chief Engineer of the Colorado Watter Conserva-
tion Board, will be with us.
Mr. Knapp:
Mr. Eldon Wallingford, Assistant Attorney General, is
legal advisor for Kansas.
Mr. Scott:
Mr. John Riddeli, Assistant Attorney General of Ne-
braska, is my advisor.
Mr. Parker-:
47a
Assistant Secretary of the Interior, Oscar Chapman, was
to have been the representative of the Department of the
Interior. At the last moment, Secretary Chapman found it
impossible to come because he had to go to Ottawa, Canada
to represent the Interior Department on some matters. I
expect a telegram today designating Howard R. Stinson,
Assistant Chief Counsel, U. S. Bureau of Reclamation as the
representative of the Department of Interior. He has with
him here today Mr. E. B. Debler of the Bureau of Reclama-
tion.
Mr. Homer H. Wells of the Bureau of Agriculture, in
Denver, is designated as advisor from the Department of
Agriculture. With him is Mr. Tom Steele.
Col. Lewis A. Pick is the representative of the War
Department.
Mr. Parker:
One point I would like to clear up. Should we try to carry
on parlimentary procedure, or proceed less formally? What
is the pleasure of the Commission?
Mr. Knapp:
It is my own feeling that in general discussions might be
somewhat informal, but that probably when we get down to
considering the revision of the Compact, line by line, or
section by section, the record should show whether each of
the three Commissioners agree to proposed changes.
Mr. Parker:
48a
I take it that in making a recommendation for a change we
should have an expression of opinion by the Commissioner of
each state. Is such procedure acceptable?
Mr. Hinderlinder:
It is to Colorado.
Mr. Scott:
It is to Nebraska.
Mr. Knapp:
I might add this: A compact is, in effect, an agreement to
which each of the several parties must consent so that
procedure doesn’t involve so much determining what the
majority wishes, as to determine whether each state accepts
the proposals made. Any change rust of course be
acceptable to all three states.
Mr. Parker:
Does any one of the state representatives wish to suggest
how we should proceed from here on?
Mr. Hinderlinder:
I would suggest that we take the original draft and go
over it article by article, paragraph by paragraph.
The Commission the proceeded to consideration of all
changes in the language of the original Compact proposed by
the new draft which Mr. Parker sent to the three
49a
Commissioners with his letter of November 19. As the new
draft the Commission took the following action:
Preliminary Section:
In line 17, after the word “who” The Commission agreed
to the proposed addition of the underlined words “after
negotiations participated in by Glenn L. Parker, appointed
by the President as the representative of the United States
of America.” No other changes to the Preliminary Section
were proposed.
Article I:
As the last paragraph of Article I, the Commission agreed
to strike out the original clause to which the Federal Power
Commission objected, and accept, in lieu thereof, the under-
lined language in lines 8, 9, 10, and 11:
“The use of the waters of the Republican River and
tributaries thereof with the Basin, as hereinabove de-
fined, for “Beneficial Consumptive Use”, as hereinbelow
defined, shall constitute paramount use and any other
use shall be subordinate thereto.”
There was considerable discussion of this matter. It
centered around the fact that the Federal Power Commiss-
ion had, in a letter to the Committee on Reclamation and
Irrigation of the House of Representatives, dated October
18, 1941, (copy attached) stated its objection to the declara-
tion that the Republican River and the tributaries thereof
were not navigable, and had recommended that the para-
graph be deleted and the above language substituted
therefor. Mr. Parker reported to the Compact Commission
that on November 30, he had received another letter (copy
also attached) in which the Commission now asked that this
50a
language, being the language hitherto proposed by them,
should be eliminated from the Compact. After long dis-
cussion the Compact Commissioners decided to retain the
language as set forth above.
Article IT:
In line 16, page 2, the word “natural” was eliminated.
In line 20, after the word “right”, the words “of any person
or entity” were added.
The same line and same page, the words “natural waters”
were striken and “water supply” substituted therefor.
In lines 20, 21, and 22, the words “by the citizens,
agencies, associations and corporations of the signatory
states” were striken out.
Line 22, page 2, the word “following” was eliminated.
Article III:
Line 2, page 3, after the word “allocated” the words “to
Colorado for use” were striken out and the words “for
beneficial consumptive use in Colorado” were substituted
therefor.
Line 11, page 3, after the word “allocated”, the word “to”
was striken out and the words “for beneficial consumptive
use in” were substituted therefor.
In the same line after the word “Colorado”, the words “for
use” were striken out.
5la
Line 12, page 3, the word “Creek” was substituted for the
word “River”, and the word “(River)” inserted after the
word “Creek”.
In line 14, page 3, “to” was striken out and the words “for
beneficial consumptive use in” added.
Same line, same page, the words “for use” were striken
out.
Line 2, page 4, after the words “acre feet” the Commission
inserted “including water supplies of upstream basins
otherwise unallocated herein”.
In line 5, page 4, the word “to” was striken, and “for
beneficial consumptive use in” substituted therefor.
In line 6, page 4, the words “for use” were eliminated.
Line 7, page 4, after “the”, “lowest crossing of the river at
the” was added.
In line 8, page 4, the word “to” was striken out, and “for
beneficial consumptive use in” added.
Line 8, page 4, after the word “Nebraska”, “for use” was
eliminated.
Line 15, page 4, the word “River” was striken out, the
word “Creek” inserted, and the word “(River)” added after
“Creek”.
Lines 2 and 3, page 5, the words “Colorado-Nebraska
state line “were eliminated, and “junction of the North Fork
and Arikaree River” added; and after the word “and”, “the
lowest crossing of the river at” was added.
52a
Line 5, page 5, after the words “acre feet”, “including
water supplies of upstream basins otherwise unallocated
herein” was added.
Line 7, page 5, “to” was striken out and “for use in” added.
Article IV:
In line 22, page 5, “River” was striken out and “Creek”
inserted in lieu thereof. The word “River”, in parenthesis,
was then added after “Creek” Also, the words “in
Nebraska” were inserted after “basin”
Line 25, page 5, The words “in Nebraska” were inserted
after “basin”.
Lines 6 and 7, page 6. The words “Colorado-Nebraska
state line” were striken out, “junction of the North Fork and
Arickaree inserted in lieu thereof and “the lowest crossing of
the river at” inserted after the word “and”
Article V:
Line 20 and 21, page 6. The words “and the people of each
said states” were eliminated.
Line 1, page 7, the word “decrees” was eliminated.
Line 4, page 7, the Commission eliminated the words “to
the state of’ and inserted in lieu thereof, “for beneficial
consumptive use in”.
Article VI:
The Commission eliminated all of line 7, page 7, and
“corporation, shall have” of line 8, beginning the sentence
with the word “The”
Line 8, page 7. After the word “right”, the words “of any
person, entity or lower signatory state” were added.
Line 10, page 7, after the word “upper”, “signatory” was
inserted.
Line 11, page. After the word “allocated”, “to” was
striken out, and “beneficial consumptive use in” was added in
lieu thereof; also after the word “state”, “shall never be
denied by an upper signatory state” was inserted.
Lines 12, 13 and 14, the words “its citizens, agencies,
associations and corporations, to control, regulate and use
the waters herein allocated to it.” was eliminated.
December 3, 1942
The Commission resumed its deliberations from the
preceding day.
Article VII:
Line 16, page 7, the capital letter “A” was striken out and
‘Any person, entity, or” inserted in lieu thereof.
In lines 16 and 17, the words “its citizens, agencies,
associations and corporations,” were striken. Also in line 17
after the word “acquire”, the words “necessary property
rights” were inserted.
54a
Line 19, page 7, the words “such easements and rights of
way” were striken out.
Line 23, page 7. The words “governmental agencies” were
striken out, and in lieu thereof, “political subdivisions of the
state” were inserted.
Line 24, page 7. The words “of way” were striken out.
Line 25, page 7, the word “occupied” was changed to
“enjoyed”
The same change was made in line 2, page 8.
Line 4, page 8, the words” governmental agencies” were
striken out and “political subdivisions of the state” inserted
instead.
Note:
At this point, according to the transcript, Judge Stone
said “In the interest of time and to avoid repetition,
could we not refer in the appropriate place to upper
state and lower state instead of signatory states or
state?” In the draft of the transcript which the
Secretary received from Mr. Parker on December 11,
this was edited by striking out “instead of” and inserting
“as”. This, probably in the unrevised form, was ap-
proved by the Compact Commissioners, the record
shows. In a second draft of the transcript, received from
Mr. Parker on December 21, which he states was
reviewed and edited by Mr. Stinson, the statement
reads, “In the interest of time and to avoid repetition
could we not refer in the appropriate place to upper
state and lower state as signatory states or state?”
55a
In the revised draft of the Compact which Mr. Parker
sent the Commissioners on December 4, it is noted that
in all instances the word “signatory”, where it occurred
in earlier drafts of the Compact, was eliminated.
Article VIII:
This Article remains unchanged.
Article IX:
At the end of the origina] Article IX, the following was
added:
Such officials may, by unanimous action, adopt rules and
regulations 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, insofar 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
the latter in the collection, correlation, and publication of
water facts necessary for the proper administration of the
compact, and may perform such other services related to the
compact as may be hereafter mutually agreed upon with the
states.”
Note:
At this point Mr. Parker read the following from a letter
he received from General Robins of the Army Engineers.
“Dear Mr. Parker:
“Further reference is made to your letter of
November 4, 1942, enclosing a new draft of Republican
River Compact for review by this office, and to the
Departmental reply thereto dated November 10, 1942, in
which it was stated that this review would be
undertaken immediately and that you would be further
informed on this subject at the earliest practicable date.
“After careful consideration of the new draft of the
Compact, I am pleased to state that this office sees no
objection to its contents insofar as the Federal interests
committed to the War Department are concerned. The
only change which this office would wish to suggest is
the insertion, on page 8, Article IX, line 18, following the
word “Reclamation,” of the following wording:
“the Chief of Engineers, United States Army.”
“Colonel Lewis A. Pick, the Division Engineer,
Missouri River Division, Omaha, Nebraska, will
represent this office at the proposed meeting of the
Compact Commission in Denver, Colorado, about
December 1, 1942. It will be appreciated if you will
inform this office promptly of the time and place of this
meeting so that Colonel Pick may be properly advised.”
57a
Article X:
Lines 2 and 3, page 9, the words “Republican River” were
striken out.
Line 4, page 9. The words “nor the United States by its
consent,” was added to the original draft of the Compact.
Article XI:
All, after the first sentence in the first paragraph of the
original Article XI, was striken out.
Article XII:
A new article, numbered XII, was added to the Compact,
of which the first part reads:
“(a) Nothing in this compact shall be deemed:
(i) To impair or affect any rights, powers or
jurisdiction of the United States, in over and to the
waters of the Basin nor its capacity to acquire rights in
and to the use of waters of said Basin;
(ii) 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 politica) sub-
division thereof, state agency, municipality or
entity whatsoever in reimbursement for the
loss of taxes;
58a
(iii) 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 the
compact.
(b) The United States, by consenting to the compact,
agrees that:
(i) Any beneficial consumptive use of such waters
by the United States, its agencies or instru-
mentalities, shall be subject to the allocations
hereinabove made among the states.;
(ii) For their best utilization for multiple purposes,
none of the waters allocated by this compact are
required by, nor essential to, the United States
in the exercise of any right or power concerning
such waters arising out of its jurisdiction as to
interstate commerce, and any future exercise of
such right or power shall be only pursuant to
statutory authority relating specifically to such
waters;
(iii) In any future exercise of any right or power
arising out of the jurisdiction or authority of the
United States over the waters allocated by this
compact, it will respect as property any right to
the beneficial consumptive use of such water
which is not or shall be hereafter established
under the laws of the appropriate state and in
conformity with this compact, and which is
impaired by such exercise.”
The last part of the original XI, beginning with the words
“IN WITNESS WHEREOF”, becomes the closing part of
the new Article XII, as compared with the original Compact.
59a
The meeting adjourned at 2 pm to meet again at Lincoln,
Nebraska on December 29, 1942.
isi M,C, HINDERLIDER
Commissioner for Colorado
/si GEO, S. KNAPP
Commissioner for Kansas
isi) WARDNER G, SCOTT
Commissioner for Nebraska
/I/ GUENN L, PARKER
Representative of the United States
60a
FEDERAL POWER COMMISSION
Washington
October 18, 1941
Hon. Compton I. White,
Chairman, Committee on Reclamation and Irrigation,
House of Representatives,
Washington, D.C.
My dear Mr. White:
There is now pending before your Committee H.R. 4647,
77th Congress, lst Session, “A Bill granting the consent of
Congress to a Compact to be entered into by the States of
Colorado, Kansas and Nebraska with respect to the use of
the waters of the Republican River Basin.”
This Commission has given careful consideration to the
proposal, and it is its view that if provision is made for
subsequent amendment or the compact it would appear
desirable to provide therein for the appointment of a repre-
sentative to serve on behalf of the United States. Such a
representative should be appointed by the President and the
President should be left free to select as he may see fit.
The Commission objects in the strongest possible terms to
the first part of the last paragraph of Article I of the
Compact, stating that “The Republican River and tributanes
thereof within the Basin are not navigable cs
6la
Legislative declaration of non-navigability, in general, is
unwise inasmuch as it is difficult, if not impossible, without
extensive studies and investigations kept current, to foresee
all the potentialities of such streams. Weight is accorded
such declaration by the Courts in view of the power of legis-
lative inquiry and judgment, and a legislative declaration
that a stream is non-navigable may, in fact, seriously hamper
and prejudice an administrative investigation and deter-
mination of navigability of the same or a related stream by a
Federal agency at a later date.
The purpose of the objectionable paragraph is simply to
declare the uses of the water of a consumptive nature as
constituting “paramount uses”. Such a declaration is not
objectionable to the Federal Power Commission, and may be
accomplished without reference to the navigability or non-
navigability of the Republican River and its tributaries. The
Commission recommends that the paragraph be deleted and
the following language substituted therefor:
“The use of the waters of the Republican River and
tributaries thereof within the Basin, as hereinabove
defined, for “Beneficial Consumptive Use,” as herein-
below defined, shall constitute pramount use and any
other use shal! be subservient thereto.”
On September 11, 1941, this Commission reported to the
Director of the Bureau of the Budget at his request upon the
bill and upon certain amendments submitted to the Bureau
by the Secretary of the Interior. The Commission’s report
included substantially the material contained in this report
to your Committee.
Very truly yours,
isi LELAND OLDS
CHAIRMAN
62a
COMMISSIONERS Address all Communication
To The Commission
Copy
Leland Olds, Chairman
Basil Manly, Vice Chairman Leon M. Fuquay,
Claude L. Draper Secretary
John W. Scott
Clyde L. Seavey
FEDERAL POWER COMMISSION
WASHINGTON
Republican River Compact
November 30, 1942
Mr. G. L. Parker,
Chief Hydraulic Engineer
Geological Survey,
Department of the Interior
Washington, D. C.
Dear Mr. Parker:
The draft of a proposed form of Republican River
Compact, submitted with your letter of November 4, 1942,
and which is to be presented by you for the consideration of
the Compact Commission at a meeting to be held in Denver,
Colorado in December, has been reviewed and informally
considered by the Commission.
63a
It is noted that the proposed draft would constitute
“beneficial consumptive use” as the paramount use. It is felt
that this language should be eliminated from the compact.
It is suggested that the definition of “beneficial con-
sumptive use” is rather broad and might lead to considerable
difficulty in interpretation of the compact if it should be
approved in its present form.
Moreover, it is suggested that there should be included in
the compact finally presented to Congress for ratification
language which would definitely recognize that the rights
and jurisdiction of the United States are not to be impaired
or affected by such compact. This could be expressed in
substantially the language heretofore used in other
compacts. In any compact to be presented to Congress, it
should clearly appear and be definitely stated that nothing in
such compact is to be construed or deemed to subject any
property of the United States, its agencies or instru-
mentalities, to taxation by any State or subdivision thereof.
Furthermore, it should be made clear that the United States
assumes no obligation to make any payment to any State by
reason of the compact or any operation thereunder.
Without the final language, to be agreed upon by
representatives of the interested States, before us, the
Commission cannot take a more definite position in the
matter. Following tentative agreement among the States,
however, we will be in a position to offer any further
suggestions which may seem necessary.
Sincerely yours,
LELAND OLDS
Chairman.
64a
Minutes of the Tenth Meeting of the Republican
River Compact Commission at Lincoln, Nebraska -
December 29, 1942 to January 1, 1943.
Present:
M. C. Hinderlider, Commissioner for Colorado
Geo. S. Knapp, Commissioner for Kansas
Wardner G. Scott, Commissioner for Nebraska
G. L. Parker, Representative of the United
States
The Commission met in the State Capitol Building.
After some preliminary remarks by the Chairman, he
asked that the minutes of the Denver meeting be read.
During and following the reading of the minutes, there was a
general discussion of several matters contained therein,
after which the minutes were approved subject to the
following clarifications, corrections, changes, or additions:
(1) On Page 5, of the minutes, in the quotation
concerning a substitute clause to be included in Article I, the
word “subordinate” is used whereas the original suggestion
of the Federal Power Commission in its letter of October 18,
1941, to the Chairman of the House Committee on
Reclamation and Irrigation used the word “subservient.”
Prior to the meeting of December 2 and 3, a representative
65a
of the Federal Power Commission had suggested a
substitution of “subordinate” for “subservient”
(2) Concerning the use of the word “signatory”, referred
to in the note on Page 9, of the minutes, the action of the
commission was to eliminate the word “signatory” wherever
it appeared in earlier drafts of the compact. Provision for
such elimination was made by inserting after the word
“Nebraska” in the first line of the compact, “parties
signatory to this compact, (hereafter referred to as Colorado,
Kansas, and Nebraska, respectively, or individually as a
State, or collectively as the States).”
(3) As to the suggestion made by General Robbins and
included in his letter as quoted in the minutes, the
suggestion was discussed at length. During such discussion
the representative of the War Department indicated
concurrence with a proposal by the Compact Commission
that “the Commissioner of the Bureau of Reclamation” be
striken from Line 18, Page 8, of the draft under considera-
tion; then, in that circumstance the War Department would
be willing to drop the suggestion made in General Robbins’
letter of November 21, 1942. Thereupon the Commission
took definite action in the matter and revised Article IX, to
read as indicated on Page 9, of the minutes.
(4) On Page 10, under Article XII, the introductory
statement was revised to read: “A new Article, numbered
XII, was added to the Compact, which reads:”.
(5) The minutes of the meeting of December 2 and 3, are
hereby amplified to show that the quoted language under (b)
(ii) was finally agreed upon by a 4-way telephone hookup
between the State Commissioners, at their respective places
66a
of business, Mr. Parker, Judge Stone, and Mr. Stinson at
Denver, on December 4, 1942.
(6) The minutes of the meeting of December 2 and 3
were further modified or corrected by striking the 2-line
paragraph on Page 12 of the minutes which refers to the
“Witness” clause of the compact.
At this point Judge Stone said that due to the experience
encountered with respect to the Colorado River Compact, he
thought that the Commissioners, before adjourning, should
take some action with respect to the binding and
preservation and official repository of official records of the
Commission. He pointed out that questions of interpretation
of the Colorado River Compact have arisen, and that in some
instances it was impossible to determine what was intended
by the commission in using certain language because the ac-
cumulations of the minutes were loosely bound, some have
disappeared, and all of the states are unable to find their
copies of the minutes. After some discussion it was agreed
by the Commission that an authenticated copy of the
minutes of the eight meetings of the Compact Commission,
resulting in a compact which failed approval by the United
States, together with the minutes of the meeting of the
present Compact Commission, held in Denver, December 2
and 3, 1942, as well as the minutes of all subsequent
meetings of the Compact Commission, be securely bound
with a copy of the Compact; and deposited in the archives of
the Department of State of the United States; and that there
be included with such minutes, a copy of the Act Congress of
the United States authorizing the making of a compact
(Public No. 696, 77th Congress), authenticated copies of the
Acts of the Legislatures of the three signatory States,
ratifying any compact which may be negotiated and an
authenticated copy of the Act of C
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