The river that runs past the Santa Fe Trail ruts west of Dodge City and gives Great Bend its name is a sand river for much of its course across western Kansas, a wide bed of braided channels that can run full in a June flood and show nothing but sand in a dry August. How much of that is nature and how much is Colorado has been argued before the Supreme Court for more than a century.
Kansas started it. On May 20, 1901, under a resolution of its legislature, the state sued Colorado, charging that by 1891 Colorado's irrigation companies had taken all of the river's ordinary flow above the state line. Kansas told the Court that the water table under the bottomlands had dropped about five feet and that the ditches of western Kansas had been left dry.
Two rivers
Colorado's lawyers answered with a picture of the river. The Arkansas, they said, was really two rivers. One rose in the mountains and poured onto the plains, and at low water, even before anyone irrigated, it disappeared into the sands of western Kansas, so that from the state line east "as far, at least, as Great Bend, if not farther" there was no flowing river at all. Farther east a second river rose from springs and drainage and ran on past Wichita. It was, they said, a "broken river," like a current passing over a sieve.
The Court did not accept the two rivers. Its opinion of May 13, 1907, found that Colorado's irrigation had reduced the flow into Kansas and hurt the stretch nearest the state line, but not the valley as a whole, and it dismissed the suit. Justice David Brewer added a warning: if Colorado kept increasing its depletions, "there will come a time when Kansas may justly say that there is no longer an equitable division of benefits." Along the way he told of General Alexander Doniphan, who marched up the valley in 1846 and came back shortly before his death in 1887 to find Pawnee Rock and the river the same and everything else changed.
The compact
In a second suit, decided in 1943, the Court refused Kansas a decreed share and told the states to negotiate. The Arkansas River Compact, ratified by Congress in 1949, divided the water stored behind the new John Martin Reservoir and promised that future development in Colorado would not materially deplete the flow at the state line.
The wells
Then came the wells. Kansas sued in December 1985, charging that new irrigation wells along the river in Colorado were draining it. On May 15, 1995, the Court agreed that post-compact pumping had violated the compact. A special master worked out the damages at about $38 million with interest, and in 2004 the Court turned down Kansas's argument for some $53 million.
The money put no water back. In central Kansas the river now carries a fraction of what it did before the wells, a loss blamed largely on irrigation pumping in eastern Colorado and western Kansas. The broken river Colorado described in 1906 is more broken now, and Kansas wells helped break it.