Court Challenge of NCORPE Fails

Court Challenge of NCORPE Fails

Monday, April 10, 2017 - 10:45am

North Platte, NEB. – The Nebraska Supreme Court on April 7 upheld the Lincoln County District Court’s dismissal of a lawsuit challenging several actions and authorities of the Nebraska Cooperative Republican Platte Enhancement Project (NCORPE) augmentation 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.

Relative to eminent domain, the state Supreme Court cited state statute that gives Natural Resource Districts (NRDs) eminent domain authority and that interlocal agencies “are authorized to jointly exercise their individually held authorities and powers through a joint entity” such as NCORPE created under the state’s Interlocal Cooperation Act. Four NRDs – Upper Republican NRD, Middle Republican NRD, Lower Republican NRD and Twin Platte NRD – comprise 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 approximately 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 (RRCA) and that approval wasn’t granted by the RRCA.

“The term ‘augmentation plan’ does not refer to the actual construction or operation of the project itself, but, rather, an augmentation plan…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 was that the easement obtained on his land was for a 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.