In re Application A-19594
995 N.W.2d 655
Neb.2023Background
- Platte to Republican Basin High Flow Diversion Project (PRD) applied to divert up to 150 cfs of excess Platte River flows to the Republican Basin, conditioned to be perpetually junior and to divert only excess flows.
- Multiple objectors (Central Platte NRD, Lower Loup NRD, Loup River Public Power District, Cozad Ditch Co., and North Platte NRD) filed objections; PRD moved to dismiss for lack of standing.
- The Department director dismissed all objections for lack of standing; the objectors appealed to the Nebraska Supreme Court (NPNRD cross-appealed).
- The regulatory and statutory context: Platte River reaches are overappropriated; NRDs have IMP/BWP duties under the Ground Water Management and Protection Act; interbasin transfers and excess-flow permits are governed by Neb. Rev. Stat. § 46-233/46-289 and Dept. regulations.
- The Supreme Court reviewed whether Department regulations/statutes confer standing beyond common-law standing and whether the objectors alleged an injury in fact; it affirmed the dismissal.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Dept. regulations or interbasin statutes confer standing beyond common-law standing | Regulations classify an "objector" and thus afford standing to objectors without meeting common-law tests | Regs use textual "standing hooks" ("interest," "legally protectable interest") and must be read to require common-law standing | Regs/statutes implicate common-law standing; they do not confer standing absent an injury in fact |
| Whether appellants alleged an injury in fact sufficient for standing | Alleged reduced availability of excess flows, impairment of IMP/BWP projects, increased costs, and competitive interest in same water | Allegations are speculative, generalized resource diminution, contingent on many events, and rest on third-party rights | Allegations were insufficiently concrete, imminent, or traceable; no injury in fact shown; standing lacking |
| Whether prior permits/exhibits (e.g., A-18922/A-18924) supplied competent, relevant evidence to support dismissal | Director improperly relied on unrelated permits and lacked proper excess-flow analysis | Prior permits are admissible record exhibits and are relevant for limited purpose (show Dept. methodology, conditions protecting protected flows) | Permits were competent and relevant for the limited explanatory purpose used by the director; reliance not reversible error |
| Whether cases recognizing "competitive" standing in groundwater (Hagan, Ponderosa) apply to surface-water excess-flow claims | Competitive-interest precedent should extend to excess-flow/surface-water disputes to confer standing | Groundwater cases involved depletion of a shared aquifer (ongoing, cumulative injury); excess surface flows are ephemeral and either used or lost, making the cases distinguishable | Groundwater competitive-interest cases are distinguishable; they do not eliminate the common-law injury-in-fact requirement for surface-water excess-flow objections |
Key Cases Cited
- In re Application A-18503, 286 Neb. 611, 838 N.W.2d 242 (2013) (surface-water appropriation objectors must meet common-law standing)
- Central Nebraska Public Power Dist. v. North Platte NRD, 280 Neb. 533, 788 N.W.2d 252 (2010) (generalized diminution of a limited resource insufficient for standing; injury must be particularized)
- Hagan v. Upper Republican NRD, 261 Neb. 312, 622 N.W.2d 627 (2001) (competitive groundwater withdrawals can create standing where aquifer depletion causes concrete injury)
- Ponderosa Ridge LLC v. Banner County, 250 Neb. 944, 554 N.W.2d 151 (1996) (groundwater competitive-use standing principles)
- Metropolitan Utilities Dist. v. Twin Platte NRD, 250 Neb. 442, 550 N.W.2d 907 (1996) (statutory language invoking an "interest" incorporates common-law standing inquiry)