Many have heard the quote attributed to Mark Twain over a 100 years ago: “Whiskey is for drinking; water is for fighting over.” Those words are as true today as they were a century ago.
Four South Central Nebraska farmers have decided to take their fight over water to court. The farmers allege they lost yields because the State diverted water away from the farmers’ irrigation supply to comply with the Republican River Compact.
Under the 1943 Compact, Kansas is to receive 40% of the water from the Republican River which starts in Colorado and flows through Nebraska before entering the Kansas. Nebraska is allocated 49% of the water but was using more than its share according to a 1998 lawsuit filed by Kansas. To comply with the original Compact and a subsequent 2002 Settlement, the State has been releasing water once used for irrigation by south central Nebraska farmers downstream to Kansas.
The farmers allege the diversion is a compensable “taking” of their water rights resulting in reduced yields of corn, soybeans, wheat and alfalfa the past few years. Some of the farmers allege they were disqualified from crop insurance as a result of the lack of irrigation water while others contend they had to resort to dry-land farming. The damages alleged may exceed tens of millions of dollars according to their attorney. Via Agweb.com
Takings claims are never easy and this one may be an especially tough row to hoe. The farmers will have to prove they had a proprietary right to the water and the State’s actions resulted in a complete taking of that proprietary right to recover compensation.
Interestingly, other farmers of South Central Nebraska lost a previous lawsuit wherein they alleged a proposed underground water diversion project would deprive them of their water rights. While not necessarily conclusive of the current lawsuit, the prior decision is evidence of how difficult the current claim may be.
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