Follow up: DNR has no jurisdiction to resolve surface/ground water users dispute

In re Complaint of Central Neb. Pub. Power, 270 Neb. 108 Filed July 1, 2005. No. S-04-836.

Western Nebraska water fights went another round in the NESCT, that court holding that the State Department of Natural Resources(DNR) had no jurisdiction to resolve complaint that Platte River irrigators were unlawfully diverting water from the Central Nebraska Public Power District, which operates Lake McConaughy. Central Public Power argued 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 DNR denied it had jurisdiction to step into the dispute. Although Spear T Ranch v. Knaub, 269 Neb. 177, 691 N.W.2d 116 (2005), held that surface water appropriators might have claims against unreasonable interference from ground water users, the Department’s jurisdiction to hear disputes between surface water appropriators and ground water users was not presented. DNR regulates surface water appropriators, see § 61-201 et seq., and the the NRDs through the Nebraska Ground Water Management and Protection Act, see Neb. Rev. Stat. § 46-701 et seq. (Reissue 2004) regulate ground water users. Moreover the Nebraska Constitution does not address the use of ground water, see XV, § 4 (“water . . . declared to be a natural want”), but was not included in article XV, § 5 (“the water of every natural stream”)..NESCT holds DNR has no independent authority to regulate ground water users or administer ground water rights for the benefit of surface water appropriators. The court does not rule on any relief the NRD might get by § 46-701 et seq. Both Gov. Dave Heineman and Attorney General Jon Bruning supported the decision.