Thanks to those who attended the McCook Natural Resource Committee hearing on the NCORPE land ownership issue. The testimony came from successful agri-business people, attorneys and from Lincoln County officials. The Natural Resources Committee heard the truth; it was convincing, pertinent and backed by fact.
NCORPE’s public land ownership is a direct assault on a highly-valued Nebraska governing tenant: Local control on issues of property taxation and land use. They also heard a very weak defense by NRD employees as to why taxpayers need to own 19,500 acres of land for a groundwater to river augmentation project that in a physical aspect is unrelated to how much land is involved.
Their argument for land ownership is based on old English Common Law, which is based on tradition and related court cases. Common law goes back to the days when water for domestic and livestock use primarily came from surface water streams. It was commonly accepted that you could not dam up a stream and deny a neighbor his share of the stream water as it flowed through his property. Nebraska’s common law on water, as defined by the Nebraska Supreme Court is, “your use of groundwater is limited to the beneficial use needed on the ownership of overlying land.”
Nebraska’s Constitution of course takes precedent over all laws: legislative, court case or common. It states “The use of the water of every natural stream within the State of Nebraska is hereby dedicated to the people of the state for beneficial purposes.”
The Nebraska Supreme Court has repeatedly stressed that when the Legislature enacts a statute that is contrary to any common law, the new statute takes precedent, common law and past court cases are no longer relevant. The Nebraska Legislature has in the past created statutes that have made an exception to common law. In 1963 they created the Municipal and Rural Domestic Groundwater Transfer Permit Act, which defined the Constitution’s beneficial use clause for public water projects as other than the common laws use on the overlying land. It is the reason the City of North Platte does not have to own 19,500 acres of land surrounding their water wells in order to supply you drinking water. The statute was upheld in the 1985, “Sorensen vs. Lower Niobrara NRD” case in which the court clearly stated that NRD’s ownership of half acre well sites to supply domestic water to rural citizens was sufficient for the public purpose and that, “in permitting transfer of groundwater from the site of its extraction the act has removed use on overlying land as an index for the ‘reasonable and beneficial’ required by common law.”
How much water NCORPE uses can easily be protected from lawsuit by deed reservations on the land sales and by the local NRD’s ability to set allocations on the amount of water used.
Two recent Supreme Court cases concerning NCORPE make it clear that the augmentation project is a public purpose similar to public domestic use water projects. In both of the cases the court made references to the Sorensen Case by stating in Estermann, “Since the Nebraska common law of groundwater permitted use of the water only on the overlying land, legislative action was necessary to allow for transfers off the overlying land for as pressing a need as supplying urban water users.” In the Dundy County Case the court referred back to language in the Sorensen case where concerning a public use a half-acre of land ownership over a well-site was sufficient to satisfy the common law’s requirement of land ownership over the source of the groundwater.
It is a complicated issue, but as you can see we have done our homework. At the hearing Thursday when NRD representatives were asked by senators about the ability of the Legislature to rectify the competing interest in this matter, they had no answers. I believe that a majority of senators on the Natural Resources Committee now see through the scare tactics and misinformation presented by the landowner proponents. I would not continue to be in Lincoln if I did not believe that commonsense and justice can prevail. It is time for legislative action.
Contact Sen. Mike Groene: email@example.com or 402-471-2729.