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BWJ Water Lawyers Assist N-CORPE

On April 7, 2017, the Nebraska Supreme Court issued its decision in Estermann v. Bose et al., 296 Neb. 228, ___N.W.2d___(2017). The case centered around the construction and operation of the N-CORPE Project and was brought by a landowner, J. Daniel Estermann. The N-CORPE Project was created by the Upper Republican Natural Resources District, Middle Republican Natural Resources District, Lower Republican Natural Resources District, and the Twin Platte Natural Resources District, all political subdivisions of the state of Nebraska charged with managing ground water for a variety of purposes. Those four natural resources districts formed N-CORPE as a separate body politic to acquire over 18,000 acres of land in Lincoln County, Nebraska for the right to access the underlying ground water and discharge that water into both the Platte and Republican River Basins. The discharge to the Platte Basin was to augment river flows for Twin Platte’s integrated management plan, while the discharge to the Republican Basin was to augment flows to create a credit for water use which ensures compliance with the Republican River Compact.

Mr. Estermann’s property was located along the route of the water discharged into the Republican River Basin and he declined to sell his property to N-CORPE. N-CORPE subsequently condemned an flowage easement and began discharges. Mr. Estermann brought suit to enjoin the operation of the Project arguing that N-CORPE did not possess eminent domain authority and had failed to acquire all of the necessary permits and approvals to operate the project. N-CORPE, through its BWJ water lawyers, filed a motion to dismiss with the district court. The district court granted the motion and Mr. Estermann appealed to the Nebraska Court of Appeals. The case was then elevated to the Nebraska Supreme Court on the Court’s own motion.

Explaining that N-CORPE was comprised of natural resource districts and each held eminent domain authority, the Supreme Court concluded that “N-CORPE had the authority to exercise the power of eminent domain.” Id. at 244,__. The Court continued with an extensive review of the various permits and approvals Mr. Estermann argued were necessary. Ultimately the Supreme Court agreed with the district court that no such permits or approvals were required and that N-CORPE was operating in conformance with the law.

 

Changes to the EPA and the Clean Water Act

Following the inauguration of President Trump, a flurry of orders have made their way across the oval office desk.  Thus far Trump’s executive actions have ranged from imposing a hiring freeze on federal employees, moving to repeal the Affordable Care Act, and effecting a 90-day immigrant travel ban. In addition to these undertakings, on January 24, President Trump signed an executive order relating to the Environmental Protection Agency (EPA), leaving many wondering what implications these orders will have for both the agency itself and the agency’s regulations, particularity the Clean Water Act (CWA).

The EPA and The CWA:

As of January 23, officials at the EPA have been instructed by the Trump administration to freeze their grants and contracts. Every year the EPA awards upwards of $4 billion in funding, but the implementation of this temporary suspension has left that funding on hold. These freezes came as little surprise to those familiar with Trump’s criticisms of the EPA. President Trump is also requiring EPA studies and data be reviewed by political appointees before being released to the public. The result of these additional procedural hurdles may be a congestion of EPA activity and may ultimately lead to a decrease in the agency’s productivity and overall functionality.

In regards to the CWA, the Trump Administration has made it clear that it intends to stifle the Obama Administration’s effort to clarify the vagueness of the Act. Trump made no qualms regarding his sentiments towards the Act throughout his time on the campaign trail prior to the election. He has reportedly labeled the Act has ‘extreme’ and ‘unconstitutional’ and vowed to eliminate it completely. Trump’s newly appointed EPA director Scott Pruitt, the former Oklahoma Attorney General, has also described the rule as being ‘unlawful’ and a ‘brazen effort to stifle private property rights.’ Pruitt was confirmed as the EPA’s new leader on February 17.

The CWA is no stranger to controversy and debate. The Act is defined as covering Waters of the United States, or WOTUS. However, the scope of this vague standard is unclear and has caused much confusion. In June 2015, the EPA and U.S. Army Corps of Engineers published a final rule defining WOTUS. However, this rule has continued to elicit significant criticism, specifically regarding the expansion of the federal government’s regulatory reach over bodies of water not originally protected by the CWA.

On January 13, the U.S. Supreme Court agreed to address federal court jurisdictional reach over challenges to the current WOTUS rule. Numerous federal appeals court decisions have upheld the broad authority of the CWA, which in essence provides expansive federal jurisdiction over wetlands and other non-navigable waters. The Supreme Court’s grant of review will allow the Trump administration additional time to resolve the issue in their favor, which would likely eliminate or replace the rule.

Thurston County Court Dismisses Drainage Suit for Lack of Proof

The Thurston County District Court has dismissed upstream landowners’ suit against a downstream landowner and Thurston County.  Plaintiffs sued the County and their downstream neighbor (represented by Blankenau Wilmoth Jarecke, LLP) for allegedly altering the natural drainage of the Old Logan Creek in Thurston County, Nebraska.  Plaintiffs alleged the County engaged in an unconstitutional taking by flooding the upstream property when the County allegedly failed to properly size a culvert crossing downstream of Plaintiff’s land.  Plaintiffs further alleged the downstream landowner unlawfully filled the natural drainage compounding the flooding upstream.  As to injunctive claims against the County, the Court found there was no evidence that the County’s actions were intentional or that the claimed flooding was a foreseeable result of the County’s actions.  As to injunctive claims against the downstream neighbor, the court found that the issue was governed by Neb. Rev. Stat. § 31-225, and that Plaintiffs failed to prove the downstream neighbor’s actions (plowing and planting through the channel) were in any way injurious.  All damage claims were also dismissed for want of proof.  The  order is one of only a handful addressing Neb. Rev. Stat. § 31-225, and makes clear that downstream farmers may re-contour a natural channel for purposes of plowing and planting, provided it does not cause upstream flooding.  A copy of the Order may be accessed here.

 

Florida v. Georgia Interstate Water Trial Concludes as USACE issues new Master Manual for ACF Basin

The latest trial in the Tri-State water wars concluded this month, as Florida rested its case before Special Master Ralph Lancaster.  In this Original Action, Florida seeks to constrain Georgia’s upstream water consumption to protect environmental and socioeconomic resources in the Apalachicola River and Bay, located in the Florida panhandle 90 minutes southwest of Tallahassee.  Florida asserts that Georgia has long recognized, but failed to meaningfully address, the impact of its consumption on the Apalachicola-Chattahoochee-Flint (ACF) River Basin and its resources.  Georgia maintains its consumption is inconsequential and that the relief Florida seeks will have substantial economic impacts on the state’s farming interests throughout the Flint River Basin.  Post trial briefs are due shortly, and a decision is expected from the Special Master in the coming months.

Just a mere week after the trial concluded, the U.S. Army Corps of Engineers (USACE) issued its long-awaited revision to the Master Manual governing its operations in the ACF Basin.  The revised Manual greatly favors Georgia whose constituents have been hailing it as a major step toward securing Atlanta water supplies through 2050.  The U.S. Environmental Protection Agency will publish the final environmental impact statement on Dec. 16, 2016.  The review period will end on Jan. 14, 2017.  It remains to be seen how the Supreme Court’s order might affect Georgia’s ultimate use of the rights USACE proposes to convey under the new Manual.

Thurston County Court Dismisses Drainage Suit for Lack of Proof

The Thurston County District Court has dismissed upstream landowners’ suit against a downstream landowner and Thurston County.  Plaintiffs sued the County and their downstream neighbor (represented by Blankenau Wilmoth Jarecke, LLP) for allegedly altering the natural drainage of the Old Logan Creek in Thurston County, Nebraska.  Plaintiffs alleged the County engaged in an unconstitutional taking by flooding the upstream property when the County allegedly failed to properly size a culvert crossing downstream of Plaintiff’s land.  Plaintiffs further alleged the downstream landowner unlawfully filled the natural drainage compounding the flooding upstream.  As to injunctive claims against the County, the Court found there was no evidence that the County’s actions were intentional or that the claimed flooding was a foreseeable result of the County’s actions.  As to injunctive claims against the downstream neighbor, the court found that the issue was governed by Neb. Rev. Stat. § 31-225, and that Plaintiffs failed to prove the downstream neighbor’s actions (plowing and planting through the channel) were in any way injurious.  All damage claims were also dismissed for want of proof.  The  order is one of only a handful addressing Neb. Rev. Stat. § 31-225, and makes clear that downstream farmers may re-contour a natural channel for purposes of plowing and planting, provided it does not cause upstream flooding.  A copy of the Order may be accessed here.

 

Florida v. Georgia Interstate Water Trial Concludes as USACE issues new Master Manual for ACF Basin

The latest trial in the Tri-State water wars concluded this month, as Florida rested its case before Special Master Ralph Lancaster.  In this Original Action, Florida seeks to constrain Georgia’s upstream water consumption to protect environmental and socioeconomic resources in the Apalachicola River and Bay, located in the Florida panhandle 90 minutes southwest of Tallahassee.  Florida asserts that Georgia has long recognized, but failed to meaningfully address, the impact of its consumption on the Apalachicola-Chattahoochee-Flint (ACF) River Basin and its resources.  Georgia maintains its consumption is inconsequential and that the relief Florida seeks will have substantial economic impacts on the state’s farming interests throughout the Flint River Basin.  Post trial briefs are due shortly, and a decision is expected from the Special Master in the coming months.

Just a mere week after the trial concluded, the U.S. Army Corps of Engineers (USACE) issued its long-awaited revision to the Master Manual governing its operations in the ACF Basin.  The revised Manual greatly favors Georgia whose constituents have been hailing it as a major step toward securing Atlanta water supplies through 2050.  The U.S. Environmental Protection Agency will publish the final environmental impact statement on Dec. 16, 2016.  The review period will end on Jan. 14, 2017.  It remains to be seen how the Supreme Court’s order might affect Georgia’s ultimate use of the rights USACE proposes to convey under the new Manual.

Thurston County Court Dismisses Drainage Suit for Lack of Proof

The Thurston County District Court has dismissed upstream landowners’ suit against a downstream landowner and Thurston County.  Plaintiffs sued the County and their downstream neighbor (represented by Blankenau Wilmoth Jarecke, LLP) for allegedly altering the natural drainage of the Old Logan Creek in Thurston County, Nebraska.  Plaintiffs alleged the County engaged in an unconstitutional taking by flooding the upstream property when the County allegedly failed to properly size a culvert crossing downstream of Plaintiff’s land.  Plaintiffs further alleged the downstream landowner unlawfully filled the natural drainage compounding the flooding upstream.  As to injunctive claims against the County, the Court found there was no evidence that the County’s actions were intentional or that the claimed flooding was a foreseeable result of the County’s actions.  As to injunctive claims against the downstream neighbor, the court found that the issue was governed by Neb. Rev. Stat. § 31-225, and that Plaintiffs failed to prove the downstream neighbor’s actions (plowing and planting through the channel) were in any way injurious.  All damage claims were also dismissed for want of proof.  The  order is one of only a handful addressing Neb. Rev. Stat. § 31-225, and makes clear that downstream farmers may re-contour a natural channel for purposes of plowing and planting, provided it does not cause upstream flooding.  A copy of the Order may be accessed here.

 

Florida v. Georgia Interstate Water Trial Concludes as USACE issues new Master Manual for ACF Basin

The latest trial in the Tri-State water wars concluded this month, as Florida rested its case before Special Master Ralph Lancaster.  In this Original Action, Florida seeks to constrain Georgia’s upstream water consumption to protect environmental and socioeconomic resources in the Apalachicola River and Bay, located in the Florida panhandle 90 minutes southwest of Tallahassee.  Florida asserts that Georgia has long recognized, but failed to meaningfully address, the impact of its consumption on the Apalachicola-Chattahoochee-Flint (ACF) River Basin and its resources.  Georgia maintains its consumption is inconsequential and that the relief Florida seeks will have substantial economic impacts on the state’s farming interests throughout the Flint River Basin.  Post trial briefs are due shortly, and a decision is expected from the Special Master in the coming months.

Just a mere week after the trial concluded, the U.S. Army Corps of Engineers (USACE) issued its long-awaited revision to the Master Manual governing its operations in the ACF Basin.  The revised Manual greatly favors Georgia whose constituents have been hailing it as a major step toward securing Atlanta water supplies through 2050.  The U.S. Environmental Protection Agency will publish the final environmental impact statement on Dec. 16, 2016.  The review period will end on Jan. 14, 2017.  It remains to be seen how the Supreme Court’s order might affect Georgia’s ultimate use of the rights USACE proposes to convey under the new Manual.

Thurston County Court Dismisses Drainage Suit for Lack of Proof

The Thurston County District Court has dismissed upstream landowners’ suit against a downstream landowner and Thurston County.  Plaintiffs sued the County and their downstream neighbor (represented by Blankenau Wilmoth Jarecke, LLP) for allegedly altering the natural drainage of the Old Logan Creek in Thurston County, Nebraska.  Plaintiffs alleged the County engaged in an unconstitutional taking by flooding the upstream property when the County allegedly failed to properly size a culvert crossing downstream of Plaintiff’s land.  Plaintiffs further alleged the downstream landowner unlawfully filled the natural drainage compounding the flooding upstream.  As to injunctive claims against the County, the Court found there was no evidence that the County’s actions were intentional or that the claimed flooding was a foreseeable result of the County’s actions.  As to injunctive claims against the downstream neighbor, the court found that the issue was governed by Neb. Rev. Stat. § 31-225, and that Plaintiffs failed to prove the downstream neighbor’s actions (plowing and planting through the channel) were in any way injurious.  All damage claims were also dismissed for want of proof.  The  order is one of only a handful addressing Neb. Rev. Stat. § 31-225, and makes clear that downstream farmers may re-contour a natural channel for purposes of plowing and planting, provided it does not cause upstream flooding.  A copy of the Order may be accessed here.

 

Florida v. Georgia Interstate Water Trial Concludes as USACE issues new Master Manual for ACF Basin

The latest trial in the Tri-State water wars concluded this month, as Florida rested its case before Special Master Ralph Lancaster.  In this Original Action, Florida seeks to constrain Georgia’s upstream water consumption to protect environmental and socioeconomic resources in the Apalachicola River and Bay, located in the Florida panhandle 90 minutes southwest of Tallahassee.  Florida asserts that Georgia has long recognized, but failed to meaningfully address, the impact of its consumption on the Apalachicola-Chattahoochee-Flint (ACF) River Basin and its resources.  Georgia maintains its consumption is inconsequential and that the relief Florida seeks will have substantial economic impacts on the state’s farming interests throughout the Flint River Basin.  Post trial briefs are due shortly, and a decision is expected from the Special Master in the coming months.

Just a mere week after the trial concluded, the U.S. Army Corps of Engineers (USACE) issued its long-awaited revision to the Master Manual governing its operations in the ACF Basin.  The revised Manual greatly favors Georgia whose constituents have been hailing it as a major step toward securing Atlanta water supplies through 2050.  The U.S. Environmental Protection Agency will publish the final environmental impact statement on Dec. 16, 2016.  The review period will end on Jan. 14, 2017.  It remains to be seen how the Supreme Court’s order might affect Georgia’s ultimate use of the rights USACE proposes to convey under the new Manual.

Thurston County Court Dismisses Drainage Suit for Lack of Proof

The Thurston County District Court has dismissed upstream landowners’ suit against a downstream landowner and Thurston County.  Plaintiffs sued the County and their downstream neighbor (represented by Blankenau Wilmoth Jarecke, LLP) for allegedly altering the natural drainage of the Old Logan Creek in Thurston County, Nebraska.  Plaintiffs alleged the County engaged in an unconstitutional taking by flooding the upstream property when the County allegedly failed to properly size a culvert crossing downstream of Plaintiff’s land.  Plaintiffs further alleged the downstream landowner unlawfully filled the natural drainage compounding the flooding upstream.  As to injunctive claims against the County, the Court found there was no evidence that the County’s actions were intentional or that the claimed flooding was a foreseeable result of the County’s actions.  As to injunctive claims against the downstream neighbor, the court found that the issue was governed by Neb. Rev. Stat. § 31-225, and that Plaintiffs failed to prove the downstream neighbor’s actions (plowing and planting through the channel) were in any way injurious.  All damage claims were also dismissed for want of proof.  The  order is one of only a handful addressing Neb. Rev. Stat. § 31-225, and makes clear that downstream farmers may re-contour a natural channel for purposes of plowing and planting, provided it does not cause upstream flooding.  A copy of the Order may be accessed here.

BWJ Water Lawyers Assist Natural Resources Districts with Niobrara River

After months of negotiations, three Nebraska political subdivisions announce they had reached agreement on the transfer of the controlling water rights to the Niobrara River in northern Nebraska. The Niobrara River drains over 11,000 square miles in portions of Nebraska, Wyoming, and South Dakota. The main stem of the Niobrara runs for nearly 400 miles along Nebraska’s norther boundary. The central portion of the river includes a 76-mile stretch that was designated by Congress as “Wild & Scenic” in 1991. In recent years, the river has been the epicenter of a dispute that involved hydropower, environmental and recreational interests, agricultural, and municipal interests. 

The dispute itself erupted when the Nebraska Public Power District (“NPPD”), the owner of a hydropower facility located near Spencer, Nebraska, elected to call for water administration from the Nebraska Department of Natural Resources (“NDNR”). The water appropriations held by NPPD at the Spencer facility are among the most senior on the Niobrara. In response to the call for administration, the NDNR issued closing notices to approximately 400 appropriations located upstream of NPPD’s facility. The closing notices were issued without any hearing at the beginning of irrigation season. In response to those closing notices, numerous suits were launched.

At the same time litigation over the closing notices was unfolding, federal agencies including the U.S. Park Service, were encouraging the Nebraska Game and Parks Commission to seek a state instream flow appropriation to protect environmental and recreational interests. The Park Service indicated a failure to seek such an appropriation by state authorities would likely result in the federal agencies initiating efforts to claim federal reserve water rights.

In response to these concerns, the BWJ water lawyers worked with their client natural resources districts to broker a transfer of the NPPD appropriations. The natural resources districts included the Upper-Niobrara White, Middle Niobrara, Lower Niobrara, Upper Elkhorn, and Upper Loup, all political subdivisions empowered to take a wide-range of regulatory action to protect water resources. The brokered transfer teamed the natural resources districts with the Nebraska Game and Parks Commission to allow those entities to jointly hold the water rights for the protection of fish, wildlife, recreation, and integrated management purposes. All litigation associated with the issue has been resolved and the parties are now working to effectuate the transfer of the water rights. The parties hope to complete the deal in 2017. 

EPA and Corps Publish New Rules for Waters of the United States

While it has been years in the making, the U.S. Army Corps of Engineers and the U.S. Environmental Protection Agency today published the final rule clarifying the agencies’ interpretation of the term “Waters of the United States” and the overall jurisdictional reach of the Clean Water Act.  The rule is effective on August 28, 2015. According to the agencies their “interpretation is based not only on legal precedent and the best available peer-reviewed science, but also on the agencies' technical expertise and extensive experience in implementing the CWA over the past four decades.”  The rule, moreover, “does not affect any of the exemptions from CWA section 404 permitting requirements provided by CWA section 404(f), including those for normal farming, ranching, and silviculture activities” and “expands regulatory exclusions from the definition of ‘waters of the United States’ to make it clear that this rule does not add any additional permitting requirements on agriculture.”  In a modification from the proposed rule, the final rule “does not regulate shallow subsurface connections nor any type of groundwater[.]”  Nevertheless, the agencies have determined that certain waters are categorically included within the CWA’s jurisdictional reach.  Four types of waters, traditional navigable waters, interstate waters, impoundments of jurisdictional waters, and the territorial seas, are jurisdictional by rule in all cases.  Two types of waters, “tributaries” and “adjacent” waters, for the first time are jurisdictional by rule, as defined, “because the science confirms” their significant nexus to other jurisdictional waters. For waters that are jurisdictional by rule, no additional analysis is required.  All other jurisdictional waters are those found after a case-specific analysis to have a significant nexus to other jurisdictional waters, “either alone or in combination with similarly situated waters in the region.”  This latter point, aggregation of waters for purposes of making jurisdictional determinations, has been hotly debated.   The regulation will be fully subject to judicial review on July 13, 2015.  The finality of the rule is almost certain to set off a slew of lawsuits challenging its validity and conformance with prior Supreme Court decisions.

Lincoln Journal Star Editorial on Republican River lawsuit decision

Editorial, 3/2: Ruling bodes well for future

March 01, 2015 11:59 pm  • 

The ruling handed down last week by the U.S. Supreme Court in a lawsuit filed by the state of Kansas means that all the tough irrigation restrictions implemented by Nebraskans in the Republican River basin paid off.

The decision was a valid reason for Nebraska officials to celebrate. The livelihoods of hundreds of farmers and a chunk of the state’s economy were at stake.

As Don Blankenau, the outside attorney hired by Nebraska, said, it was a win-win for the two states.

Consider the circumstances. Kansas filed the lawsuit because Nebraska irrigators were using so much water that the flow of water in the river at the state border was below the amount set in a 1943 compact.

Under the ruling Nebraska still had to pay $5.5 million for violating the terms of the compact. Kansas, however, initially had sought $80 million. The settlement exceeded Kansas’s legal cost by only $1 million. Importantly, the ruling excluded water that migrates from the Platte River into the Republican River basin from calculation of damages.

The high court’s ruling upheld the findings of a special master who in 2013 wrote that Nebraska “began turning over a new leaf in 2007 and thereafter, planning for compliance with more care and urgency.”

In a 2013 report, the three Natural Resource Districts in the basin reported that allocations of water for irrigation had dropped an average of 25 percent. The NRDs also agreed to reduce groundwater pumping volumes 25 percent by this year. They had already made considerable progress toward that goal in 2013.

“Rules and regulation have helped produce rising aquifer levels in some regions, stabilized levels in others and significantly slowed the rates of decline in other areas,” the NRD’s reported. Of the three, the NRD in the worst shape is the Upper Republican NRD in the southwest corner of Nebraska, where groundwater levels have been declining for decades.

Terms of the settlement give Nebraska a sharp monetary incentive to continue to conserve.

The $5 million check Nebraska will write to Kansas includes a $1.8 million “disgorgement” payment for “unjust economic gains.”

The court said, “Nebraska’s new compliance measures, so long as followed, are up to the task of keeping the State within its allotment. And Nebraska is now on notice that if it relapses, it may again be subject to disgorgement of gains.

“That, we trust, will adequately guard against Nebraska’s repeating its former practices.”

Nebraska Attorney General Doug Peterson said he was confident the decision would allow the state to “leave the past where it belongs -- in the past.” Let’s hope he’s right. The steps Nebraska has taken to meet the terms of the compact also put the state closer to its goal of sustainable water management.

(Copyrighted material - permission to publish obtained from the Lincoln Journal Star.)

Supreme Court Decides Water Dispute

By Nicholas Bergin | Lincoln Journal Star

Nebraska officials cheered a U.S. Supreme Court decision Tuesday that closes the book on a longstanding legal dispute with Kansas over water from the Republican River.

The high court upheld the recommendations from a judge, referred to as a special master, who found Nebraska should pay Kansas $5.5 million for using more than its share of the river’s water in 2005 and 2006. In a split 5-4 decision, the court also signed off on Nebraska’s request to change the formula for allocating water.

Don Blankenau, Nebraska’s legal counsel for Republican River Compact litigation, said Nebraskans should be happy with the outcome considering that Kansas originally asked for $80 million in damages and that the court shut down irrigation on thousands of acres of farmland, which would have resulted in the loss of $500 million in property values. “I think Nebraska ought to be pretty thrilled with this,” he said Tuesday.

The dispute centers on a 1943 compact allocating 49 percent of the river’s water to Nebraska, 40 percent to Kansas and 11 percent to Colorado.

The Republican River starts in the high plains of Colorado and flows east across the northwestern tip of Kansas and then runs across the southern part of Nebraska before crossing back into Kansas and eventually meeting up with the Smoky Hill River to form the Kansas River.

Water lawsuits between the states are filed directly with the U.S. Supreme Court, which appoints a special master to review them and make recommendations to the justices. Special Master William J. Kayatta issued a 188-page recommendation in November 2013.

Nebraska Attorney General Doug Peterson released a statement saying his office is pleased with the decision and emphasizing the importance of changing how water used in the basin is accounted for.

“The court’s agreement with Nebraska’s correction of the accounting procedures will ensure that Nebraskans receive their full compact entitlement, and that Nebraska is no longer improperly charged for using water to which Kansas is not entitled,” he said in the statement. “We are confident that payment of the court’s recommended award will finally allow us to leave the past where it belongs – in the past.”

The updated accounting is worth about $20 million to Nebraska a year, if one puts a monetary value to the water, Upper Republican Natural Resources District Assistant Manager Nate Jenkins said. Under the change, Nebraska will not be charged for using water that naturally migrated from the Platte River basin into the Republican River basin, he said. “The benefit that Nebraska gets from that accounting change significantly outweighs the penalties Nebraska will have to pay,” Jenkins said.

Gov. Pete Ricketts also expressed his approval in a statement, saying, “Today is a good day for Nebraska. I am pleased to see that the court has made a reasonable decision. I look forward to working with the governors of Kansas and Colorado to move forward.”

Relations between the states over the Republican River have improved greatly in recent months. They recently signed agreements giving Nebraska 100 percent credit for water it is pumping into the Republican River in 2014 and 2015 to stay within the constraints of the compact. The agreement also allows Nebraska to hold water in reservoirs and release it when Kansas farmers need it.

To help supplement river flows during dry times when crops are thirstiest, Nebraska natural resources districts have bought up thousands of acres to take them out of production as part of two projects to pump water that otherwise would have been used in irrigation into the river.

Kansas Attorney General Derek Schmidt said the Supreme Court has never before ordered an upstream state to give up part of its economic gains in an interstate water dispute. “Legally, this is a groundbreaking case that vindicates Kansas’ rights as a downstream state,” he said in a news release. “We brought this lawsuit to encourage our neighbors to live up to their obligations in future dry periods. I’m hopeful this strong and clear Supreme Court order will have that effect.”

Schmidt said the $5.5 million will be used to reimburse his office for the nearly $4.5 million it spent to bring the lawsuit. The remainder will go to the Kansas Legislature.

Supreme Court Justice Elena Kagan, writing the majority opinion, said the court was adopting the recommendations of the independent expert the justices appointed to help resolve the states’ differences. Justices Samuel Alito, Antonin Scalia and Clarence Thomas dissented on both counts, joined by Chief Justice John Roberts regarding the formula.