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February 25, 2015
David Sunding Provides Expert Testimony in Supreme Court Water Rights Case

Brattle principal David Sunding recently served as the damages expert for the state of Nebraska in the U.S. Supreme Court case, State of Kansas v. State of Nebraska and State of Colorado, in which Kansas sought more than $80 million in damages from Nebraska for taking more than its share of water from the Republican River Basin.

Kansas argued that Nebraska violated the Republican River Compact of 1943, in which Kansas, Nebraska, and Colorado agreed to share water from the basin, by overusing the river water. Professor Sunding examined Kansas' losses from Nebraska's overuse of water and concluded that there were only modest changes in crop yields and economic activity resulting from reduced irrigation in Kansas during the years in question. He also critiqued the damage models used by the plaintiffs' experts, and was able to demonstrate that they resulted in biased estimates of crop yield changes. Based in part on Prof. Sunding’s analysis, the High Court awarded Kansas only $1.8 million in damages, much less than the $80 million originally sought.

Additionally, the Court decided to modify the accounting procedures for the compact, because Nebraska was being inadvertently charged for using “imported water” from the Platte River, which was against the parties’ intent. The new procedures will ensure that Nebraska’s consumption of Platte River water is not included in its compact allotment.