U.S. Water News Online
LINCOLN, Neb. -- A case filed by a Panhandle ranch alleging the proliferation of irrigation wells is sucking streams and reservoirs dry is again before the Nebraska Supreme Court.
The high court will hear an appeal from Central Nebraska Public Power and Irrigation District, which a judge said could not intervene in the ranch's case.
The case was originally filed in 2002 by the Spear T Ranch near Bridgeport.
The ranch claims irrigation from wells has caused Pumpkin Creek to be dry most of the year, preventing the ranch from growing hay to feed its cattle.
Last year, the high court said Spear T's case could proceed in lower court, but Morrill County District Judge Paul Empson said the irrigation district could not join the proceedings because it failed to prove it had a legal interest in the matter.
Central owns and operated Lake McConaughy, the state's largest reservoir.
It's lawyer, Michael Klein, argues in briefs submitted to the court that Spear T's case directly affects it.
"The defendants unpermitted depletions of streamflow in Pumpkin Creek are causing a substantial reduction in the flow of water in the creek -- a loss of water from Pumpkin Creek which would otherwise be available for storage in Lake McConaughy," Klein said.
Continued irrigation will result in "the loss of water for irrigation, hydroelectric production, recreation, environmental protection and enhancement ... power plant cooling and incidental underground water storage and recovery," he said.
Spear T Ranch first obtained surface water rights to Pumpkin Creek in 1954 and argues that it has a vested property interest to water from the stream.
In earlier arguments before the high court, Spear T lawyer Tom Oliver said groundwater users don't have a vested property right in the water underlying their land, nor in the use of that water.
"State law entitles groundwater users `reasonable and beneficial use of the groundwater,"' Oliver said.
In last year's ruling, the high court said that the ranch had not stated a proper claim in its lawsuit, but that Empson should have allowed the complaint to be amended.
"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.
"Whether a groundwater user has unreasonably caused harm to a surface water user is decided on a case-by-case basis."
The court also issued a caution to lower courts when they consider remedies for interference with surface water.
"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.
The high court's ruling was not affected by a water policy law passed in 2004 by state lawmakers because it was not written to be retroactive.
The flow in streams and rivers in Nebraska is controlled by the state, which sets water allocations for surface irrigators.
Groundwater irrigators, on the other hand, are controlled by area natural resources districts, which allocate groundwater equally to each user.
Many streams in the state rely heavily on groundwater for replenishment.
The new law requires the gathering of extensive data and performing annual evaluations of the state's 13 river basins. It also calls for restoring water flows in the over-appropriated Platte River Basin west of Elm Creek. A process to deal with potential water conflicts before lawsuits are filed also was established.
A second Spear T lawsuit seeking more than $4 million in damages from the state was thrown out. That $4 million claim said the state has allowed the proliferation of too many wells along Pumpkin Creek.
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