Nebraska Supreme Court Upholds Village Ordinance Despite Being More Restrictive than Natural Resource District Regulations
Johnson v. Village of Polk, 319 Neb. 352 (2025)
On July 3, 2025, the Nebraska Supreme Court upheld the authority of the Village of Polk, Nebraska (“Polk”) to regulate a Wellhead Protection Area. Marjorie Johnson (“Johnson”) applied to Polk and the Upper Big Blue Natural Resource District (“NRD”) for a permit to drill a water well on her property in Polk.
The NRD approved Johnson’s request. Polk denied Johnson’s request. Johnson sued Polk for a declaratory judgment that Polk’s denial was invalid given the NRD’s approval.
The trial court upheld Polk’s denial. The Nebraska Supreme Court affirmed. The court held so long as a local ordinance does not conflict with specific language or legislative intent of a state law, it is enforceable.
State law empowers both the NRD and Polk to regulate bodies of water supplying each jurisdiction.[i] The Wellhead Protection Act, Nebraska Revised Statutes 46-1501, et seq., (the “Act”) “expressly grants, to villages and other controlling entities, the power to designate a wellhead protection area and adopt controls pursuant to the [WPA] for the purpose of protecting the public water supply system.”[ii] These controls include Polk’s ordinance requiring landowners to apply for a permit. State law also requires a well permit from its applicable natural resource district.[iii]
Although NRDs are the “preferred regulators of activities which may contribute to ground water contamination,” the court found the “Legislature did not intend to deprive other municipalities of their statutory authority to require permits for wells within the wellhead protection area.” [iv] [v] The court reasoned this was because state law “does not expressly state that the local NRDs are the only regulators” of ground water.[vi]
Further, the court noted, state law references other sources of regulatory powers in multiple sections.[vii] For instance, an “illegal water well” is one “constructed or operated without or in violation of a permit required by the [Nebraska Groundwater Management and Protection Act], one in violation of NRD regulations, or one in violation of other state laws or regulations . . .”[viii]
“[T]he Legislature intends local NRDs to have broader territorial jurisdiction and mandate that is compatible with the controls of the smaller wellhead protection area . . . and specific to the protection of a village or city’s water supply.”[ix] Further, per the court, “two regulators can both require permits of the same applicant . . . the two are not irreconcilable just because one imposes requirements that are stricter than the other.”[x]
The court’s holding confirms that Nebraska law allows cities and municipalities to regulate properties simultaneously with natural resources districts. This includes the right for both entities to require landowners to obtain well drilling permits, even if one entity’s requirements are more stringent than another’s.
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[i] See Nebraska Ground Water Management and Protection Act, Nebraska Revised Statutes 46-701 et seq., [and] Chapter 17 of the Nebraska Revised Statutes
[ii] Johnson v. Vill. of Polk, 319 Neb. 352, 361 (2025) (internal quotations omitted); see also Neb. Rev. Stat. Ann. § 46-1503
[iii] Neb. Rev. Stat. § 76-735(1).
[iv] Johnson, 319 Neb. at 365 (internal quotations omitted); see also Neb. Rev. Stat. Ann. §§ 46-702, 46-704.
[v] Johnson, 319 Neb. at 374.
[vi] Id., at 372.
[vii] Johnson, 319 Neb. at 371-72; see also Neb. Rev. Stat. Ann. §§ 46-702, 46-704, 46-706(5)
[viii] Id. (citing Neb. Rev. Stat. § 46-706(5).
[ix] Id., at 373 (emphasis added).
[x] Id.
