As I continue trying to clarify that the four Natural Resources Districts involved in N-CORPE could continue to use the groundwater underlying the augmentation project without continued direct ownership of the land, I am often told by an attorney who is well versed in Nebraska’s groundwater law: yes, I am correct that N-CORPE can sell the land but that I should refrain from using the term “separating groundwater from land ownership.”
Although my argument is correct, legal mechanisms in existing law do allow for a past or current landowner to assign groundwater use rights to others by lease, easement or reservation, he also is correct in saying those agreements always tie the ability to use groundwater to the land.
Recently the Nebraska Supreme Court ruled in favor of the Upper Republican NRD and against Dundy County concerning the county’s attempt to assess property taxes on Upper Republican’s Rock Creek augmentation project. In the ruling the court quoted from the 1985 Sorensen vs. Lower Niobrara NRD case where the NRD used eminent domain to acquire two half-acre parcels from Sorensen to establish domestic use water transfer wells for the citizens of Knox County.
The court concluded from the Sorensen decision that “it is clear that the right to use groundwater is an attribute of owning fee simple title to land overlying a source of groundwater and is inseparable from the land to which it applies.”
Supporters of N-CORPE’s continued ownership of the land now are taking the court’s words out of context by claiming the Upper Republican NRD’s decision infers that it must continue to own title to the land.
Justice William Cassel of the Nebraska Supreme Court stated in his concurring opinion in the Upper Republican case, “Perhaps another provision in current law, not invoked by the parties before us, is available to address this problem.”
Those provisions available to the N-CORPE board would include:
- N-CORPE could tie the water to the land by retaining ownership of the half-acre under each of their 19 wells and sell the remainder of the 19,500 acres.
- Sell the land and retain the groundwater use rights through a lease as a condition of sale. Bartley, Indianola and Cambridge did so when they created their joint agency to supply water to their towns. They leased the water usage rights along with easements on land from three landowners, thus tying the water usage to the landownership.
- Sell the land in parcels as N-CORPE did in 2014 when they sold to Lowe L.L.C. 313 acres, while reserving to itself all rights to use the groundwater through a deed reservation and easement, again, tying the water to the land.
It is time for scare tactics that somehow selling the N-CORPE land will open the door to an absolutely unrelated fictional future attempt to transfer our water to the Colorado front-range. A good first step was the decision by the chairman of the Natural Resources Committee to conduct a hearing on LR463 to examine existing law on augmentation projects. I plan to also heed Cassel’s second reminder in his concurrence, “But only the Legislature is empowered to determine whether current law is adequate or whether the law should be changed to balance competing public interests differently.” I will again introduce clarifying legislation next year.