Nebraska Supreme Court Releases Water Transfer Decision

This Month, the Nebraska Supreme Court released their decision in the case of In re Application A-19594 (315 Neb. 311). The history of this case is that in mid-2018, The Central Nebraska Public Power and Irrigation District (CNPPID) and the Platte Republican Diversion (PRD) Interlocal Agreement Partners (multiple NRDs that encompass the Republican River) submitted an application to the Nebraska Department of Natural Resources that would let them transfer water from the Platte River to the Republican River. The application specified that this transfer would happen if there was extra water available after all other users had taken their portion.  

When comment period closed in August 2018, seven objections were filed for the plan: North Platte Natural Resources District (NPNRD), Nebraska Public Power District (NPPD), Cozad Ditch Company, Loup River Public Power District, Central Platte Natural Resources District (CPNRD), Lower Loup Natural Resources District (LLNRD), and Audubon Society dba Audubon Nebraska. Some of these parties requested a hearing along with their objection.  

The Nebraska Department of Natural Resources (DNR) said CNPPID did not belong on the application and removed them from the issue. They required that PRD rename themselves to “Republican Basin High Flow Diversion Project”. On December 12, 2020, the Nebraska DNR released an order that the entities objecting lacked legal standing to object to the application, and therefore dismissed the objections (“standing” requires that there be measurable harm to an entity before they have a right to object). The objecting parties then filed a notice that they were appealing the decision, and a pause was placed on the project until the case decision was released. 

The parties appealed the case to the Nebraska Supreme Court to clarify the issue for them, and the court accepted the case. Both sides had valid policy arguments about the basin transfer, and argued about the harm vs the benefit, but the case was only deciding whether the Nebraska DNR correctly dismissed them for lack of standing. The Nebraska Supreme Court looked at each of the objections from the parties and ruled that none of them met the standard required to have standing.  

This case marks a moment of strong precedent in Nebraska history for determining who can oppose interbasin water transfers and could be huge in the future. In the current case, with the lack of standing affirmed, the issue now reverts to a decision by the Nebraska DNR under Director Riley. There is no timeline for when the decision will be released. 

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