LINCOLN, Neb.—The latest round in an ongoing battle over control of Nebraska’s water has landed in the state’s highest court.
The Nebraska Supreme Court will hear arguments Wednesday in one of several pending attempts to thwart the Nebraska Public Power District’s efforts to use water rights that went unused for years.
The case is one of a growing number of conflicts over water management in Nebraska prompted by increased demand for water at the same time supplies in some areas dwindle.
If the high court agrees with irrigators, the case will go back to the state Department of Natural Resources.
And that’s OK with department officials, who have reversed course on their decision not to consider irrigators’ argument that NPPD shouldn’t be able to claim the water rights.
The case began in 2007, when the department ordered hundreds of farmers and ranchers to shut off their surface water and groundwater irrigation pumps because NPPD wanted to exercise its water rights.
Irrigators asked for a hearing to determine whether the order was properly issued. But the department refused to hold a hearing on the matter, saying the irrigators already had chosen a different route—through Boyd County District Court—to secure their water rights for the next 20 years.
The decision not to rule was a mistake, the department now says in court briefs asking the judges to return the matter to them.
“The authority to regulate Nebraska’s surface water is vested exclusively in the department,” state attorneys argue.
But everyone isn’t in agreement. NPPD still argues it’s a moot issue, because the irrigators have already paid NPPD some $47,000 for 20 years’ worth of water rights.
“The appellants are attempting to have their cake and eat it too,” Lincoln attorney Stephen Mossman writes for NPPD in briefs filed with the state Supreme Court. “While filing an action in Boyd County Court with the expressed goal to ‘permanently take from NPPD the water necessary for their future farm operations,’ the appellants are simultaneously attempting to continue a case challenging the actions of DNR.”
Lincoln attorney Donald Blankenau said his clients had to have water for irrigation, so they made the claim in Boyd County District Court. The court decided the irrigators should pay NPPD more than $47,000, but that’s less than what NPPD wanted. NPPD’s appeal of that decision is still pending.
It’s not a moot issue, Blankenau says, because if it’s decided that NPPD doesn’t have the right to the water, his clients should get the $47,000 back.
The case before the state Supreme Court is entirely separate from one filed by other irrigators along the Niobrara, who won an 8th U.S. Circuit Court of Appeals ruling April 13. That court ruled that a U.S. district judge was wrong to dismiss their case, and gives those eight irrigators another chance to keep NPPD from taking the water rights.
All the court actions boil down to who has the right to the water. The district says it wants the water to produce power at the 80-year-old Spencer Dam, which it owns.
NPPD has had water rights for more than 60 years, and Nebraska law states that when it comes to appropriations, “the one first in time is first in right.”
But the law also sets up a priority system, and irrigators take higher priority than the power company. So even though they were given water rights after NPPD, the irrigators can use the water first if they want it, but they have to pay the power company for it.
NPPD wanted irrigators to pay 70 cents per acre-foot, and required that they concede that NPPD has priority.
Irrigators have called that demand “economic coercion” because they must have water to stay in business but don’t want to acknowledge that NPPD has priority rights.
The state Department of Natural Resources has granted at least 440 appropriations since NPPD acquired its rights in 1942, and NPPD never complained, Blankenau writes for the irrigators in the state Supreme Court case.
NPPD hasn’t used its rights for more than 50 years, and may have forfeited them by failing to object to any of the applications of other water users, the irrigators argue.
“The DNR has a duty to cancel rights not exercised,” Blankenau writes.
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