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Rancher Loses His Water Rights Case Nebraska's High Court Rules That the State Has No Duty to Protect Surface Streams Against Depletion.

Posted on: Saturday, 9 July 2005, 15:00 CDT

For the second week in a row, the Nebraska Supreme Court said Friday it is not the state's duty to protect the rights of people who own rights to water in streams and rivers from those who may deplete the flows by pumping water from the ground.

"It's a dark day for rivers and streams in Nebraska,'' said attorney Thomas Oliver of Bridgeport, who represented the Spear T Ranch in its lawsuit against the Nebraska Department of Natural Resources.

Rancher Rex Nielsen of Gering filed the case against the state after water in Pumpkin Creek -- which he used for crops and livestock -- disappeared. He blamed groundwater users for sucking the stream dry and asked the state to protect his property right.

David Cookson, special counsel to Nebraska Attorney General Jon Bruning, said he is pleased the legal fight is over.

"The court in this decision sent a strong message that we need to work together under LB 962 (the state's year-old water law) for the integrated management of groundwater and surface-water use,'' he said.

The case was the latest skirmish in a legal battle pitting surface-water users against groundwater users.

The state high court said last week in a case filed by the owner of Lake McConaughy that the State Natural Resources Department has no independent authority to regulate groundwater pumpers.

Earlier this year, in another case, the court said Spear T could sue irrigators for taking too much water from area streams. That case is on hold until a court determines whether Central Nebraska Public Power and Irrigation District is allowed to intervene on the ranch's behalf.

Oliver said Friday's decision is "a major defeat'' for surfacewater users.

"It still leaves groundwater regulation to natural resources districts, and their boards are heavily dominated by groundwater irrigators who believe it's not in their best interest to restrict groundwater pumping,'' he said.

Although many streams rely on groundwater for replenishment, the state treats groundwater and surface water separately. Stream and river flows are controlled and allocated by the state. Groundwater, however, is under the control of local natural resources districts.

Friday's ruling upheld a decision by Morrill County District Judge Paul Empson, who said the Natural Resources Department cannot regulate groundwater unless the Legislature gives it such authority.

"The department has no common-law or statutory duty to regulate the use of groundwater in order to protect Spear T's surface water appropriations,'' Judge John Wright wrote for the court.

Source: Omaha World - Herald

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