Surface water interests prevail; Central’s issues not settled
By LORI POTTER Hub Staff Writer
LINCOLN — Surface water right holders can use Nebraska tort laws to claim damages against groundwater users who interfere with surface water appropriations, according to a Nebraska Supreme Court ruling released this morning.
In the Spear T Ranch v. Knaub et al case, a Morrill County ranch family claimed their surface water rights in Pumpkin Creek, a North Platte River tributary, were taken when upstream irrigators pumped from hydrologically con-nected groundwater and caused the creek to run dry.
The Nebraska Supreme Court ruling says the plaintiffs can sue the upstream irrigators.
“Spear T was successful,” Holdrege attorney Mike Klein said this morning after an initial reading of the ruling, and the state’s high court did recognize the relationship between surface water and groundwater.
Klein is legal counsel to Central Nebraska Public Power and Irrigation District, which has a related lawsuit pending before the Supreme Court. The CNPPID case involves constitutional arguments, Klein explained, while the Spear T case involved statutory issues.
CNPPID has an interest in the groundwater-surface water issues because inflows to Lake McConaughy, Nebraska’s largest reservoir, come from the North Platte River and its tributaries. Central officials also have claimed that depletion of their surface water rights by the use of hydrologically connected groundwater is an unpermitted diversion.
CNPPID filed a complaint with the Nebraska Department of Natural Resources that said the state should have stepped in to protect the surface water rights.
DNR denied the claim on grounds that the state has authority over surface water rights and natural resources districts have authority over groundwater rights. The denial was appealed to the Supreme Court, and oral arguments will be scheduled during the first week in March.
“The decision (in Spear T) does not address the specific arguments we made,” Klein said.
He explained that the court’s ruling in the Spear T case means the dispute over Pumpkin Creek will be returned to Morrill County District Court. Spear T attorneys can amend the complaint under state tort laws.
According to an Associated Press story, the high court agreed that the ranch had not stated a proper claim in its lawsuit, but the justices said Morrill County District Judge Paul Empson should have allowed the complaint to be amended.
In arguments last year in the case, Spear T attorney Tom Oliver of Bridgeport said, “State law entitles groundwater users ‘reasonable and beneficial’ use of the groundwater. Reasonable and beneficial use of groundwater underlying one’s land does not mean use of water which belongs to another. Surface water appropriators and groundwater users do not have equivalent rights.”
When asked by the Hub if the Spear T ruling might mean that Central and other surface water right holders also may file claims against individual groundwater users for interference with surface water allocations, Klein said, “I suppose it’s possible.
“Obviously that’s up to the (CNPPID) board,” he said. “I think it’s highly unlikely. ... I think it’s remote, but that’s speculation on my part.”
Klein said Central official’s focus now is on their own case before the court and a decision on the constitutional issues raised.
