KEARNEY -- Water experts agreed Friday that, in general, the Nebraska Supreme Court ruling
in the Spear T Ranch v. Knaub case was a victory for surface water right holders who
believe their rights were damaged by groundwater users.
Hub
file photo by Lori Potter
Rex Nielsen, center; his brother, Kim, right; and their attorney Tom Oliver hosted
Nebraska Water Tour participants in July 2002 at the Spear T Ranch southwest of
Bridgeport.
However, David Cookson, special counsel to state Attorney General Jon Bruning, said,
"The more important thing is what didn't happen."; The court didn't apply the
first-in-time-first-in-right status of surface water rights to groundwater.
The court ruling says, "No statutory or case law authority supports applying
surface water appropriations to groundwater. We recognize that most legislatures in
western states have developed comprehensive appropriation systems overseen by
administrative agencies."
That may be a message to Nebraska legislators that it might be a good idea for them to do
that, too, said University of Nebraska-Lincoln Water Law Specialist Dave Aiken.
Reviewing the most important parts of the Spear T ruling, Aiken said, "First, it said
that groundwater users can be liable for interfering with streamflows, and that's pretty
big. ... It will be interesting to see how people respond to that."
Spear T Ranch owners claimed that their water rights in now-dry Pumpkin Creek, a North
Platte River tributary, were taken by upstream irrigators pumping from hydrologically
connected groundwater.
Aiken said the Supreme Court didn't rule on the facts of that claim, but said only that
the plaintiffs have a right to return to Morrill County District Court, file a tort claim
and present their facts.
Central Nebraska Public Power and Irrigation District Public Relations Manager Tim
Anderson of Holdrege said a Spear T owner, Rex Nielsen, called him Friday afternoon to
discuss the case. Nielsen told Anderson that the family does plan to refile its damage
claims in district court.
Central officials have said their district has been similarly damaged from upstream
groundwater pumping that has depleted Lake McConaughy inflows. Anderson said there are no
plans by CNPPID to file claims against groundwater users as a result of the Spear T
ruling.
"I think we'll see how our case plays out," he said, referring to Central's
lawsuit against the Nebraska Department of Natural Resources over surface water right
protection issues. The Supreme Court will hear oral arguments on that case in early March.
Aiken described the Spear T ruling as "breaking the ice" on groundwater-surface
water issues, but leaving the details to be filled in by future lawsuits. " They did
what courts often do," he said. "They make cautious changes."
Although the justices said groundwater users can be liable for streamflow interference,
"They didn't go very far down the road in saying what wells were in and what
wells were out (for liability)," Aiken said. "I think they took the smallest
step possible legally."
He said the court found a middle that didn't previously exist in state law.
The justices affirmed that groundwater use can affect streamflows. Aiken said that means
groundwater-surface water connections now have been affirmed legally as well as in state
policy.
Cookson and Don Adams of Lincoln, executive director of the groundwater irrigators group
Nebraskans First, singled out the standard set within the Spear T ruling to prove damage
liability.
"A proprietor of land ... who withdraws groundwater 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 groundwater 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," Judge William Connolly wrote.
The ruling also says determining unreasonable harm must be done case by case.
Focusing on the words 'substantial and unreasonable' Adams said, "That's a pretty
explicit, tough standard."
The effect on groundwater users will depend on what happens next in district court.
"The burden now has to go back to Spear T to meet the standard" Adams said.
He believes the standard can be met only in a few locations, not statewide. "This is
not a broad-brush indictment of groundwater irrigation"Adams said. "... This is
not as bad as a lot of people think it is."
The Supreme Court issued a caution to lower courts that will consider remedies for surface
water interference. "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"
Connolly said.
As courts consider ways to define reasonable actions, Cookson said they may look to the
integrated water management plans required in LB962 that attempt to balance surface water
and groundwater use.
State Sen. Ed Schrock of Elm Creek, who sponsored LB962 in 2004 as chairman of the
Legislature's Natural Resources Committee, said the Supreme Court made a good ruling in a
case that had the potential to do a lot more damage to groundwater users.
The ruling also may have enhanced the importance of integrated water management laws,
LB962 and LB108, and the Nebraska Water Policy Task Force, he said.
Schrock sees an indication in the ruling that the justices don't want the courts to take
full responsibility for deciding water management issues.
"I think it sets us out on the right course,” said Lexington farmer Jim
Lundgren, who is vice president of Nebraska Water Users, and should protect everyone
in the long term."
Aiken said the Spear T ruling doesn't signal how the court might rule in the CNPPID case
because the role and responsibility of the state isn't discussed.
The Spear T case focused on statutory issues, while Central's court briefs focused on
DNR's constitutional duty to protect surface water rights.
CNPPID initially filed a complaint with DNR that said the agency should have regulated
groundwater use that depletes streamflows and constitutes an "unpermitted
diversion." DNR denied the complaint, CNPPID appealed and the Supreme Court took the
case off the Nebraska Appeals Court docket.
