Suit against NCORPE project fails

April 8, 2017 GMT

Court rejects argument that the agency lacked eminent domain authority

The Nebraska Supreme Court on Friday upheld a decision by the Lincoln County District Court to dismiss a lawsuit challenging several actions and authorities of the Nebraska Cooperative Republican Platte Enhancement Project.

Lincoln County landowner Daniel Estermann had argued that NCORPE lacks eminent domain authority, condemned his property for a non-public purpose, didn’t obtain permits, can’t transfer water off overlying land and should have asked for Kansas’ permission to construct the project, among other arguments.

The state high court rejected each.

“We get questions about the project on several different fronts and this really clears up a lot of these legal questions that the NRDs (national resource districts) knew what they were doing, knew how to do it and did it the right way,” said Kyle Shepherd, NCORPE general manager. “It’s unfortunate that we had to spend thousands and thousands of dollars defending ourselves through the Supreme Court process.”

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Shepherd said that’s the way the process works.

“So we’re just happy it turned out the way we expected it to,” he said. “We were challenged in several different areas and it really legitimizes it.”

Relative to eminent domain, the state Supreme Court cited state statute that gives eminent domain authority and said interlocal agencies “are authorized to jointly exercise their individually held authorities and powers through a joint entity” such as NCORPE.

Four NRDs — Upper Republican, Middle Republican, Lower Republican and Twin Platte — are part of NCORPE.

The project has helped maintain compliance with the Republican River Compact by increasing stream flow without regularly shutting down irrigation throughout the Republican Basin. The water piped into Medicine Creek via the project is offset by about 16,000 acres in the Sandhills south of North Platte that the project has retired from irrigation.

Permits that Estermann argued should have been obtained weren’t necessary given the nature and intent of the project, the court ruled, and permission to construct the project wasn’t needed from the administrative body of the Republican River Compact. Estermann pointed to a section of the settlement agreement between Kansas, Colorado and Nebraska that says augmentation plans shall be approved by the Republican River Compact Administration and that approval wasn’t granted by the RRCA.

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“The term ‘augmentation plan’ does not refer to the actual construction or operation of the project itself, but, rather, … sets forth the methods for how to calculate the augmentation credit the state wishes to receive that will be taken into account when considering whether the state has complied with its allocated percentage use of the virgin water supply in the Republican River Basin under the Compact,” Nebraska Supreme Court Justice Lindsey Miller-Lerman wrote in the opinion issued by the court.

As to the argument that the project illegally transfers water off land that overlies the aquifer that is the source of the water, the high court noted that common law does prohibit such a transfer — but there are caveats. Water may be transferred from the overlying land with consent from elected representatives, and NRDs have the authority to develop, store and transport water.

Among Estermann’s other arguments were that the easement obtained on his land was for private use because the NCORPE project has private instead of public purposes. The court said that the overriding purpose of NCORPE is the public purpose of achieving compact compliance.