The Nebraska Supreme Court issued a landmark decision Friday centering on the rights of those who irrigate with surface water, and what they can do about it when their interests are damaged by those who pump underground water.
The high court said a ranching operation near Bridgeport – that depended upon water from a local creek – could sue irrigators for allegedly pumping too much underground water,.
The case is of immense importance because the interrelationship of surface water and underground water is a controversial issue that has grown more controversial during several years of drought.
The high court made clear the question at issue:
This appeal presents the question whether a surface water appropriator has a claim against a ground water user for interference with a surface water users’ appropriation.
The answer, the high court said, is: Yes.
The Spear T Ranch sued a host of irrigators who used underground water from Pumpkin Creek. Spear T said it was denied its rightful use of surface water because too much underground water was taken by the defendants.
To access the Supreme Court’s full decision, click here.
The Supreme Court made clear its view that Nebraska law governing water rights is a mess. It said:
“Hydrologically, ground water and surface water are inextricably related. Ground water pumping can cause diminished streamflows. Streamflow can support the potential for subirrigation. Seepage from surface water supplies canals, and deep percolation of applied irrigation water from surface projects can recharge ground water aquifers. Harnsberger & Thorson, supra, § 5.30. Water law commentators have colorfully described this phenomenon: “[A]ll water is interrelated and interdependent. If groundwater were red, most streams would be various shades of pink; if groundwater were poisoned, the streams would also be poisoned.” Richard S. Harnsberger et al., Groundwater: From Windmills to Comprehensive Public Management, 52 Neb. L. Rev. 179, 183 (1973).
“But Nebraska water law ignores the hydrological fact that ground water and surface water are inextricably linked. Instead of an integrated system, we have two separate systems, one allocating streamflows and the other allocating ground water. Under constitutional and statutory provisions, streamflows are allocated by priority in time. See Neb. Const. art. XV, § 6. Ground water, in contrast, is governed by a common-law rule of reasonableness and the GWMPA. Moreover, the lack of an integrated system is reinforced by the fact that different agencies regulate ground water and surface water. The Department of Natural Resources regulates surface water appropriations. See Neb. Rev. Stat. § 61-201 et seq. (Reissue 2003 & Cum. Supp. 2004). In contrast, under the GWMPA, ground water is statutorily regulated by each Natural Resources District (NRD).
“The tension between the two systems has long been recognized by commentators. See Harnsberger et al., supra at 182 (“[g]round and stream diverters in Nebraska are on a collision course which may occur sooner than most people think”). That day has arrived. [Emphasis added].
The high court specifically held:
“A proprietor of land or his [or her] grantee who withdraws ground water from the land and uses it for a beneficial purpose is not subject to liability for interference with the use of water of another, unless . . . the withdrawal of the ground water has a direct and substantial effect upon a watercourse or lake and unreasonably causes harm to a person entitled to the use of its water.
“Restatement (Second) of Torts § 858(1)(c) at 258 (1979). Whether a ground water user has unreasonably caused harm to a surface water user is decided on a case-by-case basis. In making the reasonableness determination, the Restatement, supra, § 850A, provides a valuable guide, but we emphasize that the test is flexible and that a trial court should consider any factors it deems relevant.
“We digress momentarily to offer a word of caution. Although the issue of available remedies is not yet before us, courts should be cautious when considering remedies for interference with surface water. For example, because the recharge of a stream that has dried up because of well pumping could take years, an injunction against pumping might only serve to deprive everyone in a water basin. Such a remedy would be unreasonable and inequitable. Likewise, a court can consider a surface water appropriator’s ability to obtain an exception to stays on drilling new wells, or any additional programs that might provide relief.”
The case was sent back to the District Court for Morrill County. The lower court had dismissed the lawsuit.
