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Nebraska could face smaller water bill from Kansas

LINCOLN, Neb. (AP)--An arbitrator's decision could reduce by millions of dollars the amount of money Nebraska may eventually have to pay Kansas for overusing Republican River water.

Kansas had demanded $72 million from Nebraska for using more than its allotted amount of water in 2005 and 2006 under a three-state compact that dictates use of the river and includes Colorado.

In a letter sent to Nebraska officials in April, David Barfield, the chief engineer for Kansas' Division of Water Resources, estimated that Nebraska received economic gains of $63 million by not complying with the compact.

He added 15 percent to that figure to cover Kansas' legal costs and create an incentive for Nebraska to comply, to reach $72 million.

But an arbitrator hired to help settle disputes between the two states has decided that Kansas can only seek payment for damages it allegedly suffered, not payment for what Nebraska allegedly gained.

The decision undercuts Kansas' claims for millions of dollars based on allegations of what Nebraska gained by overusing water.

It's not clear how much Kansas might try to claim in damages. Kansas hasn't provided any estimate of the damages suffered under the compact and a 2003 U.S. Supreme Court decree governing water use.

The decision by the arbitrator hired to help resolve disputes between the two states is not binding and doesn't limit what Kansas could seek in court.

But Nebraska Attorney General Jon Bruning said the decision by arbitrator Karl Dreher, a water expert, could carry significant weight if the water fight does end up in court.

"I am pleased the arbitrator's preliminary decision recognizes that Kansas' claims are limited to actual damages, if any can be shown, and that it is important for compact accounting to reflect reality," Bruning said.

A spokeswoman for Kansas Attorney General Steve Fix said they we were reviewing the decision.

"We'll continue forward with the nonbinding arbitration and continue to fight for Kansas' water rights," said Ashley Anstaett.

Should disputes not be settled in arbitration, they could land in the U.S. Supreme Court.

In 2005 and 2006, Kansas alleges that Nebraska used about 72,000 acre feet more than allowed under the three-state compact. Besides demanding $72 million, Kansas has said Nebraska should shutdown wells that irrigate nearly half of the 1.2 million acres in Nebraska's portion of the river basin.

Nebraska has not met the demand, and instead plans to get in compliance with the compact with measures such as buying and leasing water. Kansas officials have called Nebraska's compliance plan inadequate.

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Date: 12/29/08

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