LINCOLN (AP) — The Nebraska Supreme Court is expected to decide whether to scrap state-mandated restrictions that have kept a long stretch of the Niobrara River basin off-limits to new irrigation development for more than two years.
On Thursday, state attorneys will square off before the high court against four natural resources districts in a significant test of how the state decides whether river basins are able to withstand more irrigation without hurting existing water users.
The case is one of several tied to the Nebraska Public Power District's 2007 decision to exercise senior water rights the district says it needs to produce power at the 80-year-old Spencer Dam, which it owns. That decision was the primary factor in the state's 2008 determination that the basin was fully appropriated.
Four natural resources districts upstream of the dam in Boyd County argue, among other things, that the Nebraska Department of Natural Resources acted prematurely when declaring the sprawling basin that covers much of northern Nebraska fully appropriated.
In court briefs, they argue that because NPPD's claims for more water are being challenged in a separate legal dispute, the state “should not have assumed NPPD's claimed appropriations for Spencer were in full force and effect.”
State attorneys counter in court briefs that the state relied on its own investigation of whether the Spencer Dam had the capacity to use NPPD's full water allocation. They also argue that waiting for separate legal disputes to be resolved before making decisions on whether river basins are fully appropriated “would allow litigants to prevent an agency from carrying out a statutory mandate simply by filing a lawsuit.”
The water-volume figures for NPPD and the Spencer Dam the state used when deciding the basin upstream of the dam couldn't handle more irrigation were inflated by more than 33 percent, the natural resources districts say. The resources districts say that's because the figures don't factor in a number of so-called subordination agreements NPPD has with farmers and others with junior water rights that prevent NPPD from calling on them to send more water downstream.
“What is clear is that (the Department of Natural Resources) conducted the analysis using ... a flow demand for Spencer Hydro facility that was over 33 percent greater than NPPD had a legal right for which it could call,” court briefs from the natural resources districts say.
State attorneys respond that NPPD is entitled to its full water appropriation, regardless of the subordination agreements. The agreements prevent NPPD from calling on those it has agreements with to stop using water, the state says. But all other junior water users without agreements must shut down their water use until NPPD gets its full allocation of water.
The resources districts also argue that the state used a flawed water-modeling system when drawing the boundaries in which the state said that groundwater wells, over a period of 50 years, would deplete river flows by at least 10 percent of the amount pumped from the wells. They said the modeling uses assumptions that don't exist in the basin.
State attorneys counter that state law doesn't require the state to use the best technology available, regardless of cost and time, just information and methods “readily available.”
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