• Jennifer Heywood

Thurston County Court Dismisses Drainage Suit for Lack of Proof

The Thurston County District Court has dismissed upstream landowners’ suit against a downstream landowner and Thurston County. Plaintiffs sued the County and their downstream neighbor (represented by Blankenau Wilmoth Jarecke, LLP) for allegedly altering the natural drainage of the Old Logan Creek in Thurston County, Nebraska. Plaintiffs alleged the County engaged in an unconstitutional taking by flooding the upstream property when the County allegedly failed to properly size a culvert crossing downstream of Plaintiff’s land. Plaintiffs further alleged the downstream landowner unlawfully filled the natural drainage compounding the flooding upstream. As to injunctive claims against the County, the Court found there was no evidence that the County’s actions were intentional or that the claimed flooding was a foreseeable result of the County’s actions. As to injunctive claims against the downstream neighbor, the court found that the issue was governed by Neb. Rev. Stat. § 31-225, and that Plaintiffs failed to prove the downstream neighbor’s actions (plowing and planting through the channel) were in any way injurious. All damage claims were also dismissed for want of proof. The order is one of only a handful addressing Neb. Rev. Stat. § 31-225, and makes clear that downstream farmers may re-contour a natural channel for purposes of plowing and planting, provided it does not cause upstream flooding. A copy of the Order may be accessed here.

Florida v. Georgia Interstate Water Trial Concludes as USACE issues new Master Manual for ACF Basin

The latest trial in the Tri-State water wars concluded this month, as Florida rested its case before Special Master Ralph Lancaster. In this Original Action, Florida seeks to constrain Georgia’s upstream water consumption to protect environmental and socioeconomic resources in the Apalachicola River and Bay, located in the Florida panhandle 90 minutes southwest of Tallahassee. Florida asserts that Georgia has long recognized, but failed to meaningfully address, the impact of its consumption on the Apalachicola-Chattahoochee-Flint (ACF) River Basin and its resources. Georgia maintains its consumption is inconsequential and that the relief Florida seeks will have substantial economic impacts on the state’s farming interests throughout the Flint River Basin. Post trial briefs are due shortly, and a decision is expected from the Special Master in the coming months.

Just a mere week after the trial concluded, the U.S. Army Corps of Engineers (USACE) issued its long-awaited revision to the Master Manual governing its operations in the ACF Basin. The revised Manual greatly favors Georgia whose constituents have been hailing it as a major step toward securing Atlanta water supplies through 2050. The U.S. Environmental Protection Agency will publish the final environmental impact statement on Dec. 16, 2016. The review period will end on Jan. 14, 2017. It remains to be seen how the Supreme Court’s order might affect Georgia’s ultimate use of the rights USACE proposes to convey under the new Manual.

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