• Jennifer Heywood

BWJ Water Lawyers Assist N-CORPE

On April 7, 2017, the Nebraska Supreme Court issued its decision in Estermann v. Bose et al., 296 Neb. 228, ___N.W.2d___(2017). The case centered around the construction and operation of the N-CORPE Project and was brought by a landowner, J. Daniel Estermann. The N-CORPE Project was created by the Upper Republican Natural Resources District, Middle Republican Natural Resources District, Lower Republican Natural Resources District, and the Twin Platte Natural Resources District, all political subdivisions of the state of Nebraska charged with managing ground water for a variety of purposes. Those four natural resources districts formed N-CORPE as a separate body politic to acquire over 18,000 acres of land in Lincoln County, Nebraska for the right to access the underlying ground water and discharge that water into both the Platte and Republican River Basins. The discharge to the Platte Basin was to augment river flows for Twin Platte’s integrated management plan, while the discharge to the Republican Basin was to augment flows to create a credit for water use which ensures compliance with the Republican River Compact.

Mr. Estermann’s property was located along the route of the water discharged into the Republican River Basin and he declined to sell his property to N-CORPE. N-CORPE subsequently condemned an flowage easement and began discharges. Mr. Estermann brought suit to enjoin the operation of the Project arguing that N-CORPE did not possess eminent domain authority and had failed to acquire all of the necessary permits and approvals to operate the project. N-CORPE, through its BWJ water lawyers, filed a motion to dismiss with the district court. The district court granted the motion and Mr. Estermann appealed to the Nebraska Court of Appeals. The case was then elevated to the Nebraska Supreme Court on the Court’s own motion.

Explaining that N-CORPE was comprised of natural resource districts and each held eminent domain authority, the Supreme Court concluded that “N-CORPE had the authority to exercise the power of eminent domain.” Id. at 244,__. The Court continued with an extensive review of the various permits and approvals Mr. Estermann argued were necessary. Ultimately the Supreme Court agreed with the district court that no such permits or approvals were required and that N-CORPE was operating in conformance with the law.

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