Ruling Washes State Agency Out of a Water Fight The Natural Resources Department Has No Jurisdiction in an Underground Vs. Surface Dispute, the State High Court Says.

The Nebraska Supreme Court ruled Friday that a state agency has no independent authority to regulate groundwater pumpers for the benefit of those with rights to water in streams.

A lawyer for the owner of Lake McConaughy called the decision disappointing and said it may be revisited in future lawsuits.

The court upheld the Nebraska Natural Resources Department’s contention that it has no jurisdiction to regulate those who pump water from underground to protect the rights of those who take water directly from streams and rivers.

Gov. Dave Heineman and Attorney General Jon Bruning applauded the decision in the case involving Central Nebraska Public Power and Irrigation District.

Nebraska has two separate systems for allocating surface water and underground water, noted the unanimous decision written by Justice John Wright. The Department of Natural Resources regulates surface-water appropriators. Local natural resources districts regulate groundwater.

Michael Klein, Central’s attorney, said the court’s decision was predictable.

“I’m disappointed but not surprised. I have told the Central board on a number of occasions . . . that I predicted the court would wring its hands and say it’s a legislative issue. That’s what the court has done,” he said.

Klein said the decision leaves Central with two options.

One is to continue attempts to participate in a lawsuit brought by the Spear T Ranch near Bridgeport against groundwater irrigators whose pumping it alleges has reduced flows in Pumpkin Creek, which flows into the North Platte River upstream from Lake McConaughy.

The other option is to file lawsuits seeking to shut down individual irrigators whose pumping is interfering with Central’s rights to water in the North Platte.

Central says upstream groundwater pumping prevents about 100,000 acre-feet of water from reaching McConaughy each year. That represents about 15 percent of water currently in the reservoir.

The lake, which fell to a historic low level last year, is at 36.7 percent capacity after several years of drought. The reservoir is Nebraska’s largest lake and is a popular recreation site. Its water is largely used to irrigate farmland in south-central Nebraska.

Heineman said Nebraskans need to focus on finding solutions to water disputes, not on lawsuits. Bruning said he was pleased that the court recognized the importance of not changing current Nebraska law.

Roger Patterson, director of the State Natural Resources Department, said the decision should encourage all water users to work together under the state’s year-old water law to find solutions for the integrated management of groundwater and surface water.

Klein said Central will continue seeking legislation to prevent the unregulated depletion of groundwater. He said the water law approved last year by the Legislature provides some regulation, but more needs to be done.

“Central’s board obviously has not authorized new lawsuits,” Klein said, “but it remains one of the options.”