The Breach of Spencer Dam and Its Water Rights
At about five o’clock in the morning on March 14, a wall of water eleven-feet high breached Spencer Dam, crumbling the dam’s structure and washing its water rights down the Niobrara River.
For almost 90 years, Spencer Dam sat just 37 miles upstream from the Niobrara River’s confluence with the Missouri River. Built in 1927, the run-of-the-river dam regulated the Niobrara’s flow and generated hydroelectricity for its owner, the Nebraska Public Power District (NPPD).
During its lifetime, Spencer Dam’s operation also spawned a significant legal battle. As the owner of some of the Niobrara’s most senior water rights, NPPD issued a call in 2007 to curtail withdrawals by over 400 junior irrigators along the river. In 2014, the Nebraska Supreme Court upheld NPPD’s call over the challenge of a rancher whose rights the call had curtailed.
After this defeat in court, junior irrigators along the Niobrara realized the need to protect their water rights, so they—represented by the Lower Niobrara, Middle Niobrara, Upper Elkhorn, Upper Niobrara White Chadron, and Upper Loup Natural Resources Districts—formed the Niobrara River Basin Alliance. The alliance negotiated with NPPD and reached an agreement to decommission Spencer Dam and purchase its water rights. This deal would have benefitted both the alliance and NPPD, as its dam had neared the end of its useful life. The alliance planned to use its newly purchased water rights for fish-and-wildlife conservation and river stewardship.
But those plans ended when a bomb cyclone struck the upper Midwest in March 2019, dumping rain onto hardened, frozen soil and causing rivers to surge. Flooding affected Missouri, Iowa, Kansas, and Nebraska, and caused an eleven-foot wave to wash down the Niobrara and through Spencer Dam, eliminating the dam’s diversion capacity.
With its diversion capacity eliminated, Spencer Dam no longer has any water rights to convey. Nebraska law treats a structure’s inability to divert surface water as a sign that its owner has abandoned the water right. Therefore, in the eyes of the law, NPPD has abandoned its water rights, causing any agreement with the Alliance to wash away with the Spencer Dam.