WATER RIGHTS

A group of rights designed to protect the use and enjoyment of water that travels in streams, rivers, lakes, and ponds, gathers on the surface of the earth, or collects underground.

Kansas v. Colorado

The states of Kansas and Colorado have long argued over the use of the Arkansas River, which runs eastward through Colorado, Kansas, Oklahoma, and Arkansas. It joins the Mississippi River near the town of Arkansas Post, Arkansas. Kansas and Colorado first disputed the upper waters of the river in the early 1900s. The U.S. Supreme Court, which has original jurisdiction to resolve legal issues between states, issued a decision in 1907 and another one in 1943 concerning these disputes. Another dispute arose in 1985, leading to several more Supreme Court decisions. With its decision in Kansas v. Colorado, __U.S. __, 125 S.Ct. 526, 160 L.Ed.2d 418 (2004), the Court attempted to end the current litigation but declined to end its jurisdiction over the matter because of potential problems in the years ahead.

In 1949 the two states signed the Arkansas River Compact, which attempted to divide and apportion the waters equitably. However, in 1985, Kansas filed a lawsuit with the Supreme Court alleging that Colorado had violated a compact provision by drilling irrigation wells that had "materially depleted" the water that otherwise would be used by Kansas's water users. The Court, as it does in all original jurisdiction cases, appointed a Special Master to hear evidence and to make recommendations to it. The Special Master agreed with Kansas, and the Supreme Court endorsed the conclusions in 1995. The Court then sent the case back to the Special Master to determine the proper remedies. The Special Master found that Colorado had over-extracted more than 400,000 acre-feet of usable river water between 1950 and 1994. He recommended that Colorado pay Kansas for these depletions based on different time periods. He also recommended that Kansas receive prejudgment interest on the damages from 1969 through 1994. The Supreme Court adopted allof these recommendations in 2001 but it limited pre-judgment interest from 1985 to 1994. Again, the Court sent the case back to the Special Master for final resolution of outstanding matters. Kansas objected to a number of the Special Master's fourth report to the Court, leading to a full consideration of the issues by the justices.

The Supreme Court adopted the Special Master's recommendations in all respects on an 8-1 vote. Justice Stephen Breyer, in his majority opinion, first noted that Kansas had wanted the Court to appoint a River Master, who would have had authority to decide technical disputes that were related to the enforcement decree. Justice Breyer agreed with the Special Master that this would not be a good idea because further disputes, though technical in nature, might "require discretionary, policy-oriented decisionmaking directly and importantly related to the underlying legal issues." It made more sense to have the Supreme Court retain jurisdiction for a limited period of time and to have the Special Master seek to resolve disputes among the states. The enforcement plan called for the use of mathematical calculations and for a highly complex computer model that would measur the water flows to determine "what the precise water flows into Kansas would have been had Colorado not dug new wells after 1949." In addition, a River Master was not needed because both states had indicated a willingness to submit their disputes to binding arbitration.

Kansas also objected to the calculation of pre-judgment interest. The Special Master had calculated monetary damages based on what he called "considerations of fairness." He had divided the prejudgment period into three periods: an early period, between 1950 and 1968, when Colorado should have realized that it was unlawfully depleting the water; a middle period, between 1969 and the filing of the lawsuit in 1985; and, a late period, between 1985 and 1994, when judgment was entered in favor of Kansas. The Master awarded interest from 1969 to 1994. The Supreme Court, in 2001, reduced the time period, making it run for the late period of 1985 to 1994. On remand, the Special Master recalculated the interest based only on the late period, but Kansas objected, arguing that the Master should have calculated prejudgment interest from 1985 on all damages from the three periods. Justice Breyer rejected this argument and endorsed the Special Master's methodology, which yielded "a post-1985 interest calculation based upon Late Damages only."

Kansas also objected to the Special Master's recommendation that future depletions of the water be calculated over a 10-year measurement period. Kansas preferred an annual acco unting of water use. Justice Breyer dismissed this objection because of practical considerations. An annual report would prove to be highly inaccurate. In addition, Kansas likely would not suffer harm because Colorado had developed a water-replacement program to minimize depletions. Finally, Kansas did not agree with the Master that the calculation of Colorado's water-replacement credits should be handled by the Colorado Water Court. It appeared unfair to have a state court resolve a controversy involving another state. Justice Breyer reassured Kansas that the Supreme Court could review any disputes related to Water Court determinations. Therefore, the Court endorsed the Special Master's recommendations.