GRAND ISLAND — Grand Island attorney Dan Placzek has “a hundred million questions” about what a landmark Nebraska Supreme Court ruling Jan. 21 means for state water law.
Many questions come as legal counsel for the Central Platte Natural Resources District, which is on the front line of integrated water management issues in the Platte Basin. Other questions are more specific to his defense of one of the Panhandle groundwater users who is a defendant in the case.
Placzek gave an overview of the Spear T Ranch v. Knaub et al ruling Thursday at the CPNRD Board of Directors meeting in Grand Island.
The owners of the Spear T Ranch near Bridgeport claimed that their surface water rights in now-dry Pumpkin Creek, a North Platte River tributary, were “taken” by upstream irrigators pumping from hydrologically connected groundwater.
The ranchers filed a Morrill County District Court lawsuit, which was dismissed and then appealed. Placzek said the district court judge dismissed the case, in part, because there were many issues the state Supreme Court needed to resolve.
David Aiken, an ag and water law specialist at the University of Nebraska-Lincoln, has said the court didn’t rule on the facts of the surface water users’ claim, but said only that they have a right to return to Morrill County District Court, file a tort claim and present their facts.
Placzek said the court determined that there is a hydrological connection between groundwater and surface water. However, the judges rejected Spear T’s claim that groundwater use should join surface water rights in a “prior appropriation” or first-in-time-first-in-right system.
He said that while the court decided that surface water users can sue groundwater users for damages, there is a difficult standard to meet that includes showing that the damage resulted from an unreasonable water use.
Defining the source of any damages is further complicated by factors such as drought and having some wells closer to the stream than others, he added.
Placzek said the court warned against forcing all upstream groundwater pumpers to stop irrigating because of the damage that would cause to a region, particularly since it could take years for the surface water supply to recover.
When asked by CPNRD General Manager Ron Bishop if allowing well moratorium variances for the surface water right holders would be an “acceptable remedy,” Placzek said there hasn’t been a trial or a ruling to determine if money or water is a remedy.
In other business Thursday, the CPNRD directors heard a description of work by the Lower Platte Weed Management Area, which involves 11 counties from the Columbus area east, as well as other local, state and federal agencies, associations and interested parties.
With grants and cooperators’ contributions, the group has mapped infestations of weeds — purple loosestrife, phragmites and salt cedar — along the Lower Platte and sprayed herbicides from the ground and by helicopter, said Russ Shultz of the Lancaster County Weed Control.
Shultz and Platte County Weed Control Director David Gilsdorf asked the board to consider contributing about $5,200 a year to help fund weed spraying efforts in the CNPRD’s part of Platte County.
They were asked to return with a more specific request in a couple of months, once it’s known how much grant funding is available this year.
Randy Gunn of the South Central Resource Conservation and Development said central Nebraska groups are working with University of Nebraska at Kearney students on weed mapping.
CPNRD Biologist Mark Czaplewski told the Hub that there’s no multicounty weed association active in central Nebraska because many groups already are working on the noxious weed problems along the Platte River from North Platte to Columbus.
