Those who oppose an instream flow water right for Nebraska's most scenic river probably see the state Game and Parks Commission as the enemy.
True enough, the agency has been working for nearly four years to keep some water within the Niobrara River's banks.
Some irrigators and farm interests say such an instream flow permit is unnecessary. They argue it could stymie future agricultural or business development in northern Nebraska.
Conservationists and recreation advocates, however, say future irrigation demands are bound to draw more water from the stream. They say an instream flow will reserve water for fish, wildlife, boating and floating.
But, as it turns out, even if the commission fails to obtain an instream flow for the Niobrara, irrigators and farm interests might face another, more well-funded opponent -- the federal government.
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Both the National Park Service and the U.S. Fish and Wildlife Service can lay claim to water in the Niobrara. And both could pursue what is called a federal reserved water right to keep the river free flowing.
Such rights have been recognized in other rivers in other states. Whether a claim would succeed in Nebraska is up for debate.
But one thing is certain: Finding out would take a protracted legal battle and extraordinary legal expense.
No one says they want to engage in such a fight. Not even the potential holder of a federal water right.
"We really don't want to carry a big stick and tell people what to do," said Dan Foster, superintendent of the Niobrara National Scenic River in Valentine. "That just doesn't work very well."
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To understand what's at stake in the Niobrara, it helps to understand the concept of water rights.
In Nebraska, they're granted by the state Department of Natural Resources and they are typically used to divert water for irrigation.
Since 1889, the law has used what's called the prior appropriation doctrine, which means "first in time, first in right," according to a document on the issue prepared by Game and Parks. This means holders of senior water permits get their water before holders of junior permits. If there's not enough water, the junior rights get shut off.
There are hundreds of water rights granted for irrigation on the Niobrara.
In 1984, the Legislature adopted the instream flow law. It allows only Game and Parks or natural resources districts to apply for an instream flow for the sole purpose of protecting fish, wildlife and recreation.
Therefore, an instream flow right keeps water in the stream. But the Department of Natural Resources treats it just like any other water right -- first in time, first in right.
A federal reserve water right is something different.
First off, it comes into play because the U.S. Fish and Wildlife Service has operated the Fort Niobrara National Wildlife Refuge along nine miles of the river since 1912.
Then, in 1991, two sections of the Niobrara were designated for protection under the National Wild and Scenic River Act.
One designated stretch runs 76 miles downstream from Valentine and is managed by the National Park Service. The other is about 20 miles upstream from where the Niobrara meets the Missouri River and it is managed by the Missouri National Recreational River unit in Yankton.
"That act specifically says we will manage the river in a free flowing condition," said Foster, the park service superintendent in Valentine.
In addition, the service must manage the river for water quality, scenery, recreation, geology, paleontology, fish and wildlife.
Some of those categories -- defined as "outstanding, remarkable values" by the federal law -- obviously require water in the river.
That's the basis of a federal reserved water right, Foster said.
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So, what would happen if the federal government trumped the state and called for a water right?
The state's system of first in time, first in right would come into play. That means 1912 for the refuge and 1991 for the scenic river.
That means a lot of irrigators whose rights were granted after 1912 or 1991 might find themselves without water.
Such a scenario makes it easy to see how the issue could end up in court.
Bill Hansen, supervisory hydrologist for the National Park Service in Fort Collins, Colo., said federal reserved water rights have been upheld by courts in other states. But they have been untested in the Midwest or East.
Just how the concept would work in Nebraska is hard to say. There are just too many complexities to speculate, Hansen said.
"The one thing I can say for certain is it will take a lot of time and money," he said. "It will cost the taxpayers a lot of money to do."
Not long ago, Foster and Hansen traveled to Lincoln to meet with state senators, NRD representatives and Game and Parks staff to encourage them to move the instream flow process forward.
They want the commission to obtain an instream flow for the Niobrara. It's one reason the federal agencies have contributed funds and in-kind services to help pay for the costly studies required for an instream flow application.
They're not the only ones.
Mike Murphy is general manager for the Middle Niobrara NRD, headquartered in Valentine. While he is not convinced an instream flow is needed, he is sure he doesn't want to see the federal government any more involved than it already is.
"Any time you take it out of the hands of your local individuals and local agencies, you lose that perspective of local management," he said. "I think everyone would prefer to see those decisions kept not only on the state level but the local level."
Don Blankenau is a Lincoln attorney who specializes in water law and has represented NRDs. He argued that the questions are moot because the Department of Natural Resources has said there is no available water in the river to claim.
The department's fully appropriated designation for the Niobrara is tied to a 1943 water right for electrical generation at the Spencer Dam. So that means a federal claim based on the 1991 scenic river designation would be out of luck, Blankenau said.
"Even the feds wouldn't be able to get a reserve water right because the DNR has said there is no water to be had," he said. "So the threat of a federal reserved water right is a red herring."
So what about the 1912 refuge claim?
Just a taste of the complexities involved.
Regardless, Mel Thornton, president of the Friends of the Niobrara, also wants the state to settle the issue in Nebraska. His organization supports the Game and Parks effort to obtain an instream flow.
A state instream flow permit would shut off no prior permit holders, Thornton said. A federal reserved right could.
"If you have a federal reserved water right, that would be a disservice," he said. "That would be really bad. It would mean we can't manage our own resource -- we've lost local control."
Reach Joe Duggan at 473-7239 or jduggan@journalstar.com.
