Setting the record straight on N-CORPE
As I continue our objective to clarify that the four NRDs 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 present landowner to assign their groundwater use rights to others by lease, easement or reservation, he is also 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 Natural Resource District (URNRD) and against Dundy County concerning the county’s attempt to access property taxes on URNRD’s Rock Creek augmentation project. In the ruling, the Court quoted from the 1985 Sorensen v. Lower Niobrara (LNNRD) case where the NRD used eminent domain to acquire two ½-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 are now taking the Court’s words out of context by claiming the Upper Republican decision infers that it must continue to own title to the land. What they are not telling you is that in the Sorensen case the farmer continued to own and irrigate the quarter section of land surrounding the two ½ -acre parcels where the NRD transfer wells sat. They also forget to mention in the Sorensen case, the Court ruled that under the Municipal and Rural Domestic Groundwater Transfer Permit Act, the “NRD has become a peculiar type of landowner granted very special status with statutory rights contravening common law.” In other words, use of groundwater by NRDs does not follow the same common law applied to private groundwater users.
Justice Cassel 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:
— Do what LNNRD did in the Sorensen case. N-CORPE could tie the water to the land by retaining ownership of the half-acre of land under each of their 19 wells and sell off the remainder of the 19,500 acres.
— Sell the land and retain the groundwater use rights through a lease agreement as a condition of sale. The towns of Bartley, Indianola and Cambridge did so, when they created their BIC Joint Water 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. The farmers continue to own and farm the dry-land acres.
— 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 the use of the groundwater through a deed reservation and easement, again, tying the water to the land through a common real-estate legal procedure.
It is time to stop the misrepresentation of court findings and the phony 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 Resource Committee to hold a hearing on LR 463. To examine existing law on augmentation projects and the relationship between land ownership and groundwater. I plan to also heed Justice 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 to do so.