Farmers feeling heat in Republican River dispute

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The Republican River basin provides irrigation for millions of acres of farmland in Colorado, Nebraska and Kansas. Management of the river is governed by a compact signed by the states in 1943. (Grant Gerlock/Harvest Public Media)
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Grant Gerlock is Harvest Public Media's reporter based at NET News in Lincoln, Neb.

The Republican River winds through Colorado, Nebraska and Kansas. Along the way, farmers siphon water from the river to keep their crops growing. But sharing the limited resource has become a recurring legal contest, one that has the states back in court this week.

As a final arbitrator appointed by the U.S. Supreme Court considers the latest arguments, farmers along the river are concerned about keeping the water they count on.

In southwestern Nebraska, intense heat and drought have dried up predictions of a record-breaking crop. The best bet for many farmers is to irrigate their way into the black. For them, the narrow ribbon of water serves as a lifeline to a farming livelihood.

“I think under the pivots where we’ve been able to keep water we’re going to have a pretty good crop if we can have a little bit of help here from mother nature to finish out,” said Scott Moore as he toured his thirsty corn fields on a July day.

Moore farms near the small town of Bartley, Neb., down the road from where he grew up. In the afternoon sun he wears tinted glasses, a seed cap and a five o’clock shadow. He said the drought came early and his center pivots have been running as much as possible, drinking up groundwater.

Moore could lose his irrigation rights if Kansas prevails in the latest round of the legal battle over the Republican River.

“It’s tough when you’ve made an investment, when the water is there and you just say you can’t use it,” Moore said. “That’s upsetting. Is that fair? I don’t know.”

Depending on what the arbitrator rules, Nebraska also could also be on the hook for millions in damages to Kansas farmers.

The case revolves around the Republican River Compact, which Colorado, Nebraska, and Kansas signed in 1943. The agreement spelled out that Colorado would get a small share of the water and the rest of the river would be split between Kansas and Nebraska.

But over the years there were complaints as more water went toward irrigation. Complaints turned into lawsuits. In 1998, Kansas sued Nebraska and Colorado for taking more than their share of river water. That lawsuit was settled in 2003 with new calculations on how much water was being used. But seven years later, in 2010, Kansas sued again saying Nebraska used too much water in 2005 and 2006. That is the case being argued now.

Kansas officials want Nebraska to do more to protect the water rights of farmers like Tom Koch of Clyde, Kan., who is also suffering through this year’s record drought.

“Our crops are on kind of on life support right now,” Koch said. “We keep catching half to three-quarters of an inch of rain every 10 days or so.”

Koch raises corn, beans, wheat, and milo some 200 miles downstream from Scott Moore in Nebraska. Even his irrigated crops are suffering and the Republican River, he said, is hardly there.

“You know I think you’d have to fall face first in the river to drown right now,” Koch said.

But as dry as it is this year, the case looks back to how much water Nebraska used in 2005 and 2006, a couple of years that came at the end of a long dry spell.

“Nebraska never denied that we were not in compliance. The facts are what they are,” said Dan Smith, manager of the Middle Republican Natural Resources District in Curtis, Neb.

Dan Smith, manager of the Middle Republican Natural Resources District in Nebraska, agrees Nebraska used too much water from 2005-06 but believes Kansas is demanding more than it deserves. (Grant Gerlock/Harvest Public Media)

But while Nebraska may have taken too much water six or seven years ago, Smith said, Kansas is asking for too much from the court.  He’s concerned the court decision could have a profound effect on Nebraska and those who farm along the Republican River.

“If Kansas would prevail through all of their issues, there would be $60-$70 million in damages,” Smith said. “And 300,000 acres in the basin would have to be shut down. That’s significant. That’s around 30 percent of the irrigation in the basin; 25 percent for sure.”

Kansas officials have argued the case is not just about what Kansas farmers may have lost, but what Nebraska farmers may have gained at their expense.

Since the 2005-06 period, Nebraska said it has met its obligations regarding the revised Republican River Compact, though Kansas says that was easy because there was plenty of water for everyone.  Officials in Kansas say they want Nebraska to be prepared for the dry years.

Smith said Nebraska is now doing enough to hold up its end of the bargain. For instance, the Middle Republican District is buying up water rights, and paying some farmers to stop irrigating.

But dry years like this remind Nebraska farmers like Scott Moore why they do not want to be left looking up for rain clouds when they know they can find water down, underground. They do not want to give that up, even if it is to make sure a farmer in Kansas can make a crop.

The final arbitrator appointed by the Supreme Court, is scheduled to open the hearing in Portland, Maine on Aug. 13. Arguments could take three weeks.

And if the dry weather holds up, there could be years of more arguments ahead.