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  • Jennifer Heywood

BWJ Water Lawyers Assist Natural Resources Districts with Niobrara River

After months of negotiations, three Nebraska political subdivisions announce they had reached agreement on the transfer of the controlling water rights to the Niobrara River in northern Nebraska. The Niobrara River drains over 11,000 square miles in portions of Nebraska, Wyoming, and South Dakota. The main stem of the Niobrara runs for nearly 400 miles along Nebraska’s norther boundary. The central portion of the river includes a 76-mile stretch that was designated by Congress as “Wild & Scenic” in 1991. In recent years, the river has been the epicenter of a dispute that involved hydropower, environmental and recreational interests, agricultural, and municipal interests.

The dispute itself erupted when the Nebraska Public Power District (“NPPD”), the owner of a hydropower facility located near Spencer, Nebraska, elected to call for water administration from the Nebraska Department of Natural Resources (“NDNR”). The water appropriations held by NPPD at the Spencer facility are among the most senior on the Niobrara. In response to the call for administration, the NDNR issued closing notices to approximately 400 appropriations located upstream of NPPD’s facility. The closing notices were issued without any hearing at the beginning of irrigation season. In response to those closing notices, numerous suits were launched.

At the same time litigation over the closing notices was unfolding, federal agencies including the U.S. Park Service, were encouraging the Nebraska Game and Parks Commission to seek a state instream flow appropriation to protect environmental and recreational interests. The Park Service indicated a failure to seek such an appropriation by state authorities would likely result in the federal agencies initiating efforts to claim federal reserve water rights.

In response to these concerns, the BWJ water lawyers worked with their client natural resources districts to broker a transfer of the NPPD appropriations. The natural resources districts included the Upper-Niobrara White, Middle Niobrara, Lower Niobrara, Upper Elkhorn, and Upper Loup, all political subdivisions empowered to take a wide-range of regulatory action to protect water resources. The brokered transfer teamed the natural resources districts with the Nebraska Game and Parks Commission to allow those entities to jointly hold the water rights for the protection of fish, wildlife, recreation, and integrated management purposes. All litigation associated with the issue has been resolved and the parties are now working to effectuate the transfer of the water rights. The parties hope to complete the deal in 2017.

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