Published Saturday January 22, 2005 Decision may bring water law to a boil BY DAVID HENDEE
WORLD-HERALD STAFF WRITER

A landmark State Supreme Court ruling is opening the floodgates to eroding Nebraska's longtime legal barriers between water in streams and water that's in aquifers, experts said Friday.

In a decision that will intensify the water-rights debate in Nebraska, the court said a Panhandle ranch can sue irrigators who pump from the ground for taking too much water and drying up a stream.

"We're in the era now of trying to put surface water and groundwater together, and the big issue is where the line will be drawn," said David Aiken, a water-law authority at the University of Nebraska-Lincoln.

As drought continues to grip the West, conflicts and lawsuits between water users along the Platte and Republican Rivers in Nebraska could spread to farmers and communities statewide, Aiken said.

At issue is a lawsuit filed in 2002 by Spear T Ranch near Bridgeport. Rancher Rex Nielsen of Gering said water pumped from neighbors' wells caused Pumpkin Creek to be dry most of the year, preventing Spear T from growing hay to feed its cattle.

The court recognized the ability of surface-water users to seek protection when adversely affected by groundwater pumpers, said attorney LeRoy Sievers of Lincoln. He represented the Nebraska State Irrigators Association in the case.

Both sides in the dispute said the decision contained good news for their irrigators, but that the issue will probably end up back in the high court.

"It's a victory in the sense that we have been given the opportunity to go back to court," said Spear T lawyer Tom Oliver of Bridgeport. "But the burden's on us to show that the interference from groundwater users has been 'direct and substantial.'"

Don Adams, executive director of the Lincoln-based Nebraskans First, said it will be tough for surface-water users to prove direct and substantial harm. Nebraskans First represents groundwater irrigators.

"A lot of people will hail this ruling as a big deal. I don't see it that way," Adams said. "This case is limited, and the issue everywhere will be decided on a case-by-case basis."

Tim Anderson, spokesman for Central Nebraska Public Power and Irrigation District in Holdrege, said that although the court set a high standard for proving harm, it affirmed the right of surface-water users to sue groundwater pumpers for damages.

"That's significant," he said.

Anderson said it won't be tough for surface-water users to prove damages, but it will be an expensive process.

Spear T Ranch first obtained surface water rights to Pumpkin Creek in 1954 and argues that it has a vested property interest in water from the stream.

In Friday's ruling, the high court agreed with a lower court that the ranch had not stated a proper claim in its lawsuit. But the Supreme Court said Morrill County District Judge Paul Empson should have allowed the complaint to be amended.

Water flow in streams and rivers in Nebraska is controlled by the state, which sets water allocations for surface irrigators. Groundwater irrigators are controlled by natural resources districts.

Keith Olsen, president of the Nebraska Farm Bureau, said he hoped irrigators involved in similar disputes use integrated management plans established in the state's new water law to resolve conflicts outside of courts.

Don Blankenau, a Lincoln water lawyer, said a flood of new lawsuits between water users could nibble at management plans created in basins hit by drought.

Aiken said he expects it will take years of legal wrangling to resolve how to handle disputes between surface-water and groundwater irrigators. For example, he expects Central Irrigation to sue over groundwater irrigators' depletion of flows into Lake McConaughy.

State laws are not finely focused on the issue, he said.

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