U.S. Water News Online
LINCOLN, Neb. — A case that could help define state government's role in restricting a lifeblood of the state economy, irrigation, is before the Nebraska Supreme Court.
Two years ago, the state Department of Natural Resources shut down new irrigation development in portions of the Platte River Basin. The department had studied the basin and determined that allowing more wells would strain water resources in the region beyond what was allowed under a new state law.
But the so-called “fully appropriated” designation also spilled into an adjoining river basin, the Big Blue River Basin. That barred new wells in a 15-square-mile slice of the 2,800-square-mile basin governed by the Upper Big Blue Natural Resources District, prompting the district to file a lawsuit against the state Department of Natural Resources.
A Lancaster County District Court judge upheld the state's decision, and the NRD appealed the decision to the high court, which will hear arguments in the case.
Attorneys for the Upper Big Blue NRD argue the state overstepped its authority by curtailing irrigation development in the basin when another basin, the Platte, was the main focus of its study.
State law, attorney Steven Seglin wrote in briefs to the court, “makes it crystal clear that an independent evaluation must be made for each river basin before it, or any geographic area within such river basin, can be designated as being fully appropriated.
“The language of the statute...reiterates that preliminary determinations of fully appropriated are restricted to the river basin being evaluated,” he said.
Seglin referred to a law passed in 2004 by state lawmakers that recognizes the connection between groundwater and surface water and that allowed the state to define the Upper Platte basin and part of the Upper Big Blue basin fully appropriated. The law significantly changed water management by giving the state more power to regulate groundwater use, historically the sole province of natural resources districts.
The state attorney general's office argues in court filings that, under the law, state regulators are supposed to follow the fluid connections between surface and groundwater, not the hard boundaries of river basins, when making decisions.
“The ability of the department to determine the geographic area of hydrological connection is one of the most vital management tools enacted by the legislature to help protect the public's water supplies,” wrote Assistant Attorney General Justin Lavene.
“The act does not limit in any manner the department's ability to determine the geographic area of hydrological connection for fully appropriated designations.”
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