If river runs dry, lawsuits might flow

Odd as it may seem, there are still some people in Nebraska who refuse to acknowledge that irrigation wells deplete flows in the state's streams and rivers.
This group has fought against regulation for years, using the well-worn words that there is a "lack of sound science" or "insufficient data" to justify limits on the number of irrigation wells that suck water out of the ground.

Their stance is becoming almost laughable.

The latest blow came last week when the Nebraska Supreme Court ruled that the Spear T Ranch near Bridgeport could sue groundwater irrigators for drying up Pumpkin Creek.

The implications are significant.

Pumpkin Creek is a tributary of the North Platte. Historically, its water eventually flowed into Lake McConaughy and on down the Platte River where it provided, among myriad things, a watery stopping place for sandhill cranes and replenishment for the city of Lincoln well fields.

With thousands of new irrigation wells going in every year, other stakeholders have realized that wildlife, recreation on rivers and reservoirs and municipal water supplies also are at risk.

The high court apparently understands that irrigation wells affect streams. Judge William Connolly wrote that a landowner can be held liable for damages if "withdrawal of the groundwater has a direct and substantial effect upon a watercourse or lake and unreasonably causes harm to a person entitled to use of its water."

When that concept is thoroughly embedded in case law, then groundwater irrigators will understand that they need to get in line with everybody else when it comes to using this precious natural resource.

The biggest remaining question is whether the legal process, and the state's new integrated approach to managing surface and groundwater use, put in place last year by LB962, will be able to reverse years of overuse in the Platte River basin before more rivers and creeks run dry.

Because groundwater moves slowly, experts say, it may take 50 years to see the effect on a stream of a well about a mile away.

The court's ruling in the Pumpkin Creek case is far from the last word. The case, which now goes back to the lower court, is still entangled in technicalities. The court also delivered a puzzling warning that an injunction against pumping might serve to deprive everyone in a water basin. If lower courts were to apply the warning in an ill-advised fashion, then groundwater depletion would continue.

If nothing else, the long-running Pumpkin Creek suit provides another example of how expensive and time-consuming water litigation can be. The state's new, integrated approach to water management looks better already as an avenue for resolving conflict.