Pumpkin Creek: Lawsuit points to need for expansion of water laws

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By J. Michael Jess

With the scenic buttes and monuments of the Wildcat Hills nearby, Eric, Kim and Rex Nielsen grew up on the Spear T Ranch, located some 40 miles southeast of Scottsbluff. During the 1950s, chores assigned to the three boys included helping with livestock and with irrigation. Flows running in Pumpkin Creek provided water for the cattle and for the crops.

Beginning near the Wyoming-Nebraska boundary, Pumpkin Creek extends eastward across much of the semiarid Nebraska panhandle. Midway toward its junction with the North Platte River, it crosses the Spear T Ranch. The creek was a continuously flowing oasis, its channel a stone’s throw from the ranch house. As youngsters the Nielsen boys often played in the creek and they sometimes fished for trout.

At the official measuring station near its mouth, flows in Pumpkin Creek averaged more than 23,000 acre-feet per year (an acre-foot is nearly 326,000 gallons) during the 1932–1970 time period. During the succeeding four decades, flows in the creek decreased precipitously. In all of 2008, for example, only 728 acre-feet passed through the measurement apparatus. While several exceptions are notable in the annual statistics, the trend line is irreversibly headed south.

Today, except when local thunderstorms produce overland runoff or after snow melts in the spring, Pumpkin Creek no longer flows across the Spear T Ranch. Crops have not been watered from it in more than a decade, and it is no longer a dependable water source for livestock.

In searching for reasons why flows in Pumpkin Creek declined so dramatically, the Nielsens sought advice from scientists and engineers. Initially apparent was the large number of irrigation wells located in many portions of the watershed. A correlation linking streamflow declines to the increase in numbers of wells was soon established. Not just coincidence or solely the consequence of drought conditions, the experts’ analyses said operation of the irrigation wells (presently, there are nearly 600) had lowered the water table, subsequently depriving Pumpkin Creek of water that would otherwise flow in it.

Nebraska water law fundamentals

Political leaders have long understood Nebraska’s prosperity is dependent upon economic development. Soon after achieving statehood, attention was directed toward irrigation and development of other water uses. In recognizing the state’s climatic variability, laws were designed to foster predictable and orderly use of water during times of shortage. Nebraska adopted the prior appropriation doctrine (“first in time is first in right”) for allocating supplies among those holding rights for streamflow diversions or impoundment in reservoirs. The 1895 Legislature also created a special agency, now called the Department of Natural Resources (DNR), and charged it with broad enforcement responsibilities.

Those and other legislative and constitutional measures effectively created certainty, an essential element for public and private investment in construction of water and related natural resources infrastructure. In addition to a variety of reservoirs, electric generation facilities and other projects, many irrigation canals were built. Located mostly in the Platte, Republican, Loup and Niobrara river basins, water from streams and reservoirs is presently delivered to approximately one million irrigated acres. Included in the long list of those holding rights to divert streamflows is Spear T Ranch. Its two irrigation rights have 1954 and 1956 priority dates.

Before the late 1930s existence of Nebraska’s vast groundwater reserves was not broadly understood. There were few large-capacity wells, and conflicts among well owners were rare. Instead of adopting policies intended to limit pumping, the quest for economic development prompted lawmakers and others to support test-drilling and related earth-resource investigations.

While attention was devoted to exploration efforts, the state’s fundamental groundwater policy emerged from a 1933 Nebraska Supreme Court decision (Olson v. City of Wahoo). Among other things, that decision said wasteful practices could not be tolerated and that pumping must only be for reasonable and beneficial purposes on a well owner’s property. Instead of the prior appropriation doctrine, the court concluded a proportionate sharing of available supplies among well pumpers should be the legal basis upon which such disputes would be determined. No public officials were charged with administering such rules, so the common-law decision meant litigation would be the means for resolving disputes among well-water users.

In contrast to the sometimes harsh and absolute clarity of “first in time is first in right” principals used for distributing surface water supplies, the Olson decision created a separate and far different legal doctrine for resolving disputes among well-water users. While understood in hypothetical terms, significant uncertainties included when, where or what restrictions might one day be imposed on well-water users. The Olson ruling was narrow in scope and did not mention situations where conflicts might arise because surface water and groundwater resources are physically interconnected.

Neither those uncertainties nor the registration and minimum spacing requirements adopted by the Legislature in 1957 discouraged investment in water wells. Based upon belief that groundwater reserves are practically unlimited, some 100,000 large-capacity wells are now scattered across the state. According to a recent report from the U.S. Geological Survey, a large majority provide water to approximately 6.5 million irrigated acres. Added to that, nearly every city and town pumps groundwater for municipal customers.

Yet more wells are owned by self-supplied industrial, manufacturing and commercial interests.

Legal efforts to restore water flowing in Pumpkin Creek

In an attempt to restore Pumpkin Creek flows for irrigation and for their livestock, the Nielsens approached both the North Platte Natural Resources District and the DNR. Citing Nebraska’s separate legal systems for regulating use of surface water and groundwater, each entity refused Spear T’s request.

Rather than give up, Spear T initiated two legal actions. It filed a claim for compensation from the State of Nebraska and a formal complaint against the upstream irrigation well owners.

Unfortunately for Spear T, both its compensation claim and its complaint against the well owners were eventually rejected. In addressing underlying legal issues, however, members of the Nebraska Supreme Court acknowledged groundwater and surface water resources are sometimes interconnected, and it was noted Nebraska’s body of law had long ignored that fact.

After reviewing the separate legal doctrines, the court went on to conclude the Restatement of Torts (a series of treatises published by the American Law Institute) should govern the outcome of conflicts involving interconnected surface water and groundwater resources. (For those unfamiliar with legal terms, a tort typically includes injuries or damages arising from accidents, faulty products, negligence or trespassing.) From the Spear T Ranch v. Knaub opinion, the new common-law standard is

A proprietor of land or his (or her) grantee who withdraws groundwater from the land and uses it for a beneficial purpose is not subject to liability for interference with the use of water of another, unless the withdrawal of groundwater has a direct and substantial effect upon a watercourse or lake and unreasonably causes harm to a person entitled to the use its water.

As guidance in wrestling with determining what activity “unreasonably causes harm,” the 2005 opinion encouraged a wide perspective. In referring to certain legal guidelines pertaining to tort claims, the court urged flexibility in application and said “a trial court should consider any factors it deems relevant.”

In addition to revision of Nebraska’s common-law, the court reviewed recent Legislative amendments to the Ground Water Management and Protection Act (LB 962 was enacted in 2004, after Spear T initiated its legal appeal). Fatal to the interests of Spear T, provisions of LB 962 were found to be general in nature and not intended to resolve individual disputes. The court also noted the pertinent statutes are forward-looking and do not require Natural Resources Districts (NRDs) to adopt plans designed to remedy past injuries.

Future of Pumpkin Creek and other streams

The Spear T Ranch ruling was disappointing to the Nielsen family. Beyond important legal implications stemming from their lawsuit, little else has changed. In the Pumpkin Creek watershed the North Platte NRD continues allowing well-water irrigators to annually pump 12 inches of water per acre. Flows in Pumpkin Creek remain meager and are often intermittent. With their financial resources depleted, the Nielsens recently opted not to pursue further legal action.

Beyond the Pumpkin Creek area, large numbers of irrigation wells are believed responsible for depleted streamflows in parts of the Platte, Niobrara and Republican River watersheds. Depleted streamflows have adversely impacted canal irrigators, riverine and riparian habitat, reservoir recreation and hydroelectric generation. Tensions over compliance with the Republican River Compact largely center on whether well-water regulations are sufficient and fairly imposed upon irrigators across Nebraska’s portion of the watershed.

Most observers believe it unlikely NRDs will restrain well-water pumping in order to restore, or even preserve, streamflows. With its regulatory authorities strictly limited to those diverting or impounding surface water, such efforts cannot be expected from the DNR. That leaves possible remedies dependent upon adversarial and costly litigation before courts whose judges already face crowded dockets and are frequently not prepared for the highly technical and lengthy proceedings typically seen in water cases.

Need for policy review and expansion

The Pumpkin Creek litigation points to a deficiency in Nebraska’s water laws. Where flow depletions are attributable to well-water pumping, Nebraska lacks an effective means to assure the continued viability of the state’s streams.

Overriding debate about equities and fairness is the absence of regulatory provisions that simply threatens the public interest in the continued flow of water in streams. For Spear T Ranch and for many others, absence of such regulations also has eroded faith in the state’s social contract that was understood to promise certainty, the foundation upon which investment in water and related resources rests.

Use of water creates economic, social and environmental consequences—stuff appropriate for political debate and resolution. Indeed, after noting the pledge of judges to not “legislate from the bench,” several observers suggested the Pumpkin Creek ruling amounts to a message for members of the public and the Legislature. Sent by those holding appointments in the judicial branch, it was said the message is about certainty and an obvious need to address a critical void in current water policy.

By themselves, streamflow depletions caused by well-water pumping will not disappear or somehow be reversed. New policy measures are needed so that individuals or organizations are not forced to initiate litigation when unrestrained well-water pumping depletes streamflows. The new policy measures should include commitment to sustainability and a future in which water continues flowing in its streams.

 

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