Johnson v. Village of Polk (319 Neb. 352): Co-Equal Permitting – Municipal Wellhead Protection Ordinances Coexist with NRD Well-Drilling Authority

Introduction

The Nebraska Supreme Court’s decision in Johnson v. Village of Polk creates a significant clarification of the relationship between (1) municipal authority to protect public drinking-water sources through wellhead-protection ordinances and (2) Natural Resources District (NRD) authority under the Nebraska Ground Water Management and Protection Act (NGWMPA) to permit new wells.

Marjorie Johnson, owner of 80 acres historically irrigated through a neighbor’s well, obtained an NRD permit for a replacement irrigation well. Because her land lies within the Village of Polk’s state-approved wellhead protection area, Ordinance No. 328 also required her to secure a village permit. The Village Board denied her application, citing nitrate-contamination concerns. Johnson filed a declaratory-judgment action claiming the ordinance was (1) pre-empted by state law, (2) ultra vires (beyond municipal power), and (3) an impermissible interference with “existing farming” under Neb. Rev. Stat. § 17-1001(3). The district court upheld the ordinance; the Supreme Court affirmed, dismissing related petition-in-error claims for lack of jurisdiction.

Summary of the Judgment

Statutory Authority Found: The Court held that Polk’s ordinance is authorized by the Wellhead Protection Area Act (WPAA) and §§ 17-536 & 17-537, which allow villages to enact and enforce rules to prevent pollution of their drinking-water sources.
No Field or Conflict Pre-emption: The NGWMPA did not exhibit legislative intent to occupy the entire field of well regulation, nor did Johnson’s NRD permit conflict with the ordinance. Municipal and NRD permits may validly overlap.
“Existing Farming” Not Impaired: Because Johnson’s irrigation ceased due to private disagreement, not the ordinance, § 17-1001(3) was not violated.
Petition-in-Error Dismissed: Johnson failed to perfect the statutory record, depriving courts of jurisdiction over the Village Board’s quasi-judicial decision.

Analysis

1. Precedents Cited

The Court built on two cornerstone pre-emption cases:

State ex rel. City of Alma v. Furnas County Farms, 266 Neb. 558 (2003) – upheld city livestock-waste ordinances alongside state Environmental Protection Act (EPA) permits, except where the city bond requirement conflicted with state rules.
Sarpy County v. City of Springfield, 241 Neb. 978 (1992) – invalidated a city ordinance that imposed approval requirements outside the city’s zoning jurisdiction where the EPA expressly vested approval in the county.

Using these cases, the Court reaffirmed that: (1) Extensive state schemes do not automatically oust local regulation; (2) Express statutory language conferring exclusive power (as in Sarpy) is required to create pre-emption; (3) Local regulation must yield only when it directly conflicts with state permission (Alma).

2. Court’s Legal Reasoning

Dillon’s Rule & Statutory Construction
Villages possess only powers expressly granted, implied, or indispensable. The WPAA explicitly names villages as “controlling entities” empowered to “adopt controls” in wellhead protection areas. Sections 17-536 & 17-537 further confer a 15-mile jurisdiction to prevent injury to water sources and to make rules for waterworks management. Reading these provisions in pari materia, Polk had authority to require permits.
Field Pre-emption Rejected
The NGWMPA does make NRDs the “preferred regulators” of activities causing depletion or contamination “except as otherwise specifically provided by statute.” The WPAA and § 17-536/537 are such specific statutes. Therefore, legislative intent supported co-regulation, not exclusivity.
Conflict Pre-emption Rejected
Johnson argued her NRD permit triggered § 46-738’s command to “commence construction,” allegedly thwarted by Polk’s denial. The Court held there is no statutory language that guarantees drilling upon NRD approval, nor does the ordinance outright prohibit wells; it merely adds a protective filter. Two permits for the same activity are not inherently contradictory.
§ 17-1001(3) “Existing Farming” Claim
The cease of irrigation was traced to private circumstances (termination of neighbor’s shared well) rather than the ordinance. At the time of denial, Johnson’s operation was dryland farming. No interference occurred.
Procedural Point – Petition-in-Error
Because Johnson did not file the administrative record required by § 25-1905, the district court—and thus the Supreme Court—lacked jurisdiction over the alleged arbitrariness of the Board’s decision.

3. Impact of the Decision

Municipal Empowerment: Cities and villages can confidently maintain or enact permit requirements inside state-approved wellhead protection areas, even when NRDs issue drilling permits.
Dual-Permit Landscape: Landowners must plan for layered compliance—NRD and municipal—when drilling near public water sources. Failure at either level halts the project.
Nitrate & Contaminant Control: The precedent strengthens local capacity to address contamination threats before expensive treatment plants become necessary.
Clarification of § 17-1001(3): “Existing farming” protection does not encompass the right to expand or alter operations (e.g., adding a new well) when external conditions change.
Guidance for Future Litigation: Parties challenging local water-protection controls must (a) perfect petitions-in-error and (b) demonstrate true statutory conflict, not mere inconvenience.

Complex Concepts Simplified

Dillon’s Rule: A doctrine stating that non-home-rule municipalities possess only those powers the Legislature explicitly or implicitly grants.
Wellhead Protection Area (WHPA): A scientifically delineated surface/subsurface zone around public wells where activities are controlled to prevent contamination.
Natural Resources Districts (NRDs): Regional governing bodies in Nebraska with broad authority (under NGWMPA) over groundwater quantity and quality, including well permitting.
Types of Pre-emption:
- Express – Legislature plainly states local law is barred.
- Field – State scheme is so comprehensive it implies exclusivity.
- Conflict – Local law prohibits what state law permits (or vice versa).
In pari materia: A canon requiring courts to read statutes on the same subject as one coherent system, harmonizing them when possible.
§ 17-1001 Extraterritorial Zoning Jurisdiction (ETJ): Allows smaller municipalities to apply zoning and building codes up to one mile outside city/village limits, with an anti-interference clause protecting existing farming operations.

Conclusion

Johnson v. Village of Polk fortifies Nebraska municipalities’ authority to shield public drinking water through tailored wellhead-protection permitting, even in the presence of NRD‐level well-drilling approvals. The Court meticulously harmonized overlapping statutes, signaling that Nebraska’s groundwater governance is a layered partnership, not a hierarchical monopoly. Landowners must seek—and satisfy—both NRD and municipal permissions where applicable, while local governments must tailor ordinances to genuine public-health objectives that complement, rather than contradict, state regulatory frameworks.

The decision also narrows the protective scope of “existing farming” under § 17-1001(3) and underscores procedural rigor in petition-in-error practice. Overall, Johnson stands as a blueprint for cooperative groundwater stewardship, balancing agricultural development, local autonomy, and statewide resource policy.