Johnson v. Village of Polk

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Nebraska Supreme Court Advance Sheets
319 Nebraska Reports
JOHNSON v. VILLAGE OF POLK
Cite as 319 Neb. 352
Marjorie Johnson, appellant, v.
Village of Polk, appellee.
___ N.W.3d ___
Filed July 3, 2025. 	No. S-24-693.
1. Statutes: Appeal and Error. Statutory interpretation is a matter of law
in connection with which an appellate court has an obligation to reach
an independent, correct conclusion irrespective of the determination
made by the court below.
2. Appeal and Error. An issue not presented to or decided by the trial
court is not appropriate for consideration on appeal.
3. Municipal Corporations: Statutes: Legislature. Municipal corpora-
tions can exercise only such powers as the Legislature has granted, and
statutes granting powers to municipalities are to be strictly construed.
4. Municipal Corporations: Words and Phrases. Under what is com-
monly referred to as “Dillon’s Rule,” non-home-rule municipal corpora-
tions possess and can exercise only (1) those powers granted in express
terms; (2) those powers necessarily or fairly implied in, or incidental
to, the powers expressly granted; and (3) those powers essential to the
declared objects and purposes of the municipality, not merely conve-
nient, but indispensable.
5. Appeal and Error. Appellate courts do not consider arguments and
theories raised for the first time on appeal.
6. Municipal Corporations: Statutes. In considering the powers con-
ferred to a municipality by statute, courts utilize the intrinsic aid of
the in pari materia doctrine, reading all statutes upon the same general
subject matter as part of one system and later statutes as supplementary
or complementary to those preceding them.
7. Statutes. Even under strict construction, courts do not read into statutes
words that are not there.
8. Statutes: Ordinances. Preemption of municipal ordinances by state
law is based on the fundamental principle that municipal ordinances are
inferior in status and subordinate to the laws of the state.
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
10/14/2026 07:57 AM CDT

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Nebraska Supreme Court Advance Sheets
319 Nebraska Reports
JOHNSON v. VILLAGE OF POLK
Cite as 319 Neb. 352
9. ____: ____. State preemption arises with respect to municipal ordi-
nances or township laws and flows from the principle that municipal
legislation is invalid if it is repugnant to, or inconsistent with, state law.
10. Courts: Statutes: Ordinances. When a court considers preemption
claims, it is obligated to harmonize, to the extent it legally can be done,
state and municipal enactments on the identical subject.
11. Municipal Corporations: Statutes: Legislature: Intent. There are
three types of preemption: (1) express preemption, (2) field preemp-
tion, and (3) conflict preemption, although the three categories are not
analytically air-tight. In all three cases, the touchstone of preemption
analysis is legislative intent.
12. ____: ____: ____: ____. Field preemption and conflict preemption arise
in situations where the Legislature did not explicitly express its intent to
preempt local laws, but such can be inferred from other circumstances.
13. ____: ____: ____: ____. In conflict preemption, legislative intent to
preempt local laws is inferred to the extent that a local law actually
conflicts with state law.
14. Ordinances: Legislature: Statutes. An ordinance cannot prohibit
what the Legislature has expressly licensed, authorized, or permit-
ted. Conversely, without express legislative grant, an ordinance cannot
authorize what the statutes forbid.
15. Ordinances: Statutes. A city ordinance is inconsistent with a statute if
it is contradictory in a sense that the two legislative provisions cannot
coexist.
16. Municipal Corporations: Statutes: Legislature: Intent. In field pre-
emption, legislative intent to preempt local laws is inferred from a com-
prehensive scheme of legislation.
17. ____: ____: ____: ____. The mere fact that the Legislature has enacted
a law addressing a subject does not mean that the subject matter is com-
pletely preempted.
18. Statutes. Courts must read the provisions of any act or any number of
acts so that they are harmonized, if possible, and so construed as to give
some effect to every part.
Appeal from the District Court for Polk County: Rachel
A. Daugherty, Judge. Affirmed in part, and in part dismissed.
Jared J. Krejci, of Smith, Johnson, Allen, Connick & Hansen,
for appellant.
No appearance by appellee.

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Nebraska Supreme Court Advance Sheets
319 Nebraska Reports
JOHNSON v. VILLAGE OF POLK
Cite as 319 Neb. 352
Funke, 	C.J., 	Miller-Lerman, 	Cassel, 	Stacy, 	Papik,
Freudenberg, and Bergevin, JJ.
Freudenberg, J.
INTRODUCTION
An owner of farmland who was denied a permit by a vil-
lage to drill a new well for purposes of irrigating her farm-
land appeals from the denial of a declaratory judgment that
an ordinance requiring a permit for new wells in the village’s
wellhead protection area was invalid on its face or as applied.
She argues the ordinance requiring a permit from the vil-
lage’s board of trustees to drill private water wells within the
wellhead protection area of the village’s public water source,
which was established in cooperation with the Department of
Environment and Energy pursuant to the Wellhead Protection
Area Act, Neb. Rev. Stat. §§ 46-1501 to 46-1509 (Reissue
2021), is facially invalid as preempted by the Nebraska Ground
Water Management and Protection Act (NGWMPA), Neb. Rev.
Stat. §§ 46-701 to 46-756 (Reissue 2021), which gives local
natural resources districts (NRDs) powers to issue permits
for new wells. Additionally, she argues that the ordinance as
applied to her preexisting farming operation located within
the village’s wellhead protection area violates Neb. Rev. Stat.
§ 17-1001(3) (Reissue 2022), because it interferes with the
conduct of existing farming. We affirm.
BACKGROUND
After Marjorie Johnson (Marjorie) obtained a permit by the
governing Upper Big Blue natural resources district (Upper Big
Blue NRD) to drill a well on her farmland that had been his-
torically irrigated through an agreement to share a well located
on a neighboring farm, the Village of Polk (Polk) informed
her that, pursuant to Polk’s ordinance No. 328 (Ordinance No.
328), she also must obtain a permit from Polk’s board of trust-
ees (Village Board) to legally drill the well. When the Village
Board denied her application for a permit to drill the well, she
commenced this action in district court.

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Nebraska Supreme Court Advance Sheets
319 Nebraska Reports
JOHNSON v. VILLAGE OF POLK
Cite as 319 Neb. 352
Complaint
In her complaint, Marjorie sought a declaratory judgment
that Ordinance No. 328 is illegal and facially invalid or
invalid as applied because it is preempted by the NGWMPA
and the regulations enacted by the Upper Big Blue NRD
under the authority granted by the NGWMPA; exceeds Polk’s
extraterritorial zoning jurisdiction granted by § 17-1001(3),
because it prohibits, prevents, or interferes with her existing
farming operations; exceeds the authority granted to villages
by the State of Nebraska; and was not properly enacted under
the Wellhead Protection Area Act.
Alternatively, based on the same challenges to Ordinance
No. 328, Marjorie alleged in her complaint that she was fil-
ing a petition in error challenging the Village Board’s deci-
sion. The record does not reflect a notice of appeal or request
for a transcript from the Village Board. At a pretrial hearing,
Marjorie stated her belief that the correct way to challenge the
ordinance was through the declaratory judgment action, but
clarified she “included the petition-in-error part as a fall back
in case [she] was wrong about that.”
Evidence at Trial
The evidence adduced at the trial on the declaratory judg-
ment action showed that Marjorie has 80 acres of farmland that
was purchased together with her late husband. The land was
farmed as irrigated farmland for at least 22 years until 2023.
The land was irrigated through an agreement that Marjorie and
her late husband made with their neighbor.
After the death of Marjorie’s husband, Marjorie informed
the neighbor she was going to lease her and her late husband’s
land to someone else. Soon thereafter, the neighbor cut off all
contact with Marjorie and she “assumed [she] lost [the right to
use] the well” on the neighbor’s land. Rather than “fight over”
the right to use that well, she decided to apply for permission
to construct a new well.

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Nebraska Supreme Court Advance Sheets
319 Nebraska Reports
JOHNSON v. VILLAGE OF POLK
Cite as 319 Neb. 352
Marjorie applied for a permit with the Upper Big Blue
NRD. In October 2023, the Upper Big Blue NRD approved the
application and granted a permit to construct a new water well
for center-pivot farm irrigation in the Upper Big Blue NRD
groundwater management area. The Upper Big Blue NRD cov-
ers Polk County, Nebraska. The permit states, “Issuance of this
permit DOES NOT imply that the proposed well complies with
Federal, State or Local requirements.”
An employee of Polk informed Marjorie she also had to
obtain a permit from the Village Board, because the well would
be located within 1 mile of the corporate limits of Polk County
and within Polk’s “Wellhead Protection Area.” Introduced into
evidence at trial is a map drawn by the then Department
of Environmental Quality pursuant to its wellhead protection
program, showing that Marjorie’s land is located in Polk’s
wellhead protection area. Also in evidence is a letter from the
Director of Environmental Quality in 2014, approving Polk’s
wellhead protection plan.
Marjorie applied for a permit pursuant to local Ordinance
No. 328, which generally provides that any person who wishes
to drill a water well located within Polk’s wellhead protection
area must obtain a permit from the Village Board, which can
approve the application only if it determines the water well
will not cause contaminants to enter the public water supply.
In November 2023, a meeting was held before the Village
Board to consider the application. The Village Board voted to
deny the permit.
According to the testimony of Darold Carlstrom, chairper-
son of the Village Board, there was no specific scientific data
considered during the meeting. However, the proposed well
fell within Polk’s wellhead protection area, which shows that
the aquifer supplying water for Polk’s waterworks flows from
the site of Marjorie’s proposed water well. Carlstrom indi-
cated there was concern that an additional well in that area
could increase the levels of nitrates in Polk’s drinking water.
He explained that nitrates in Polk’s water supply had already

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Nebraska Supreme Court Advance Sheets
319 Nebraska Reports
JOHNSON v. VILLAGE OF POLK
Cite as 319 Neb. 352
been a problem, which was addressed by building a new water
tower that blended water from two wells. Polk would not be
able to afford a treatment plant, potentially required if nitrates
rose higher. Thus, the Village Board did not think it was in
Polk residents’ best long-term interests to add another well in
the wellhead protection area. Carlstrom admitted that Marjorie
would be extracting the same amount of water as she had been
extracting from the shared well.
In April 2024, a tenant began leasing and farming Marjorie’s
land as dryland. Because the land is nonirrigated, the income
from the crops was diminished and Marjorie has lost lease
income and property value.
Marjorie argued Ordinance No. 328 was invalid because
of field preemption of the NGWMPA, which provides that
the various local NRDs shall regulate water wells across the
state and shall grant permits for drilling new water wells con-
sistent with the policies of the NGWMPA. She also asserted
that Ordinance No. 328 directly conflicts with the mandate of
§ 46-738 of the NGWMPA that “[w]hen any permit is approved
pursuant to section 46-736, the applicant shall commence con-
struction as soon as possible after the date of approval and
shall complete the construction and equip the water well prior
to the date specified in the conditions of approval . . . ,” as
well as the regulations of the Upper Big Blue NRD defin-
ing a “permit” as “a document obtained, in accordance with
the [NGWMPA] and these rules and regulations, authorizing
the construction or modification of a water well or its use.”
Lastly, characterizing Ordinance No. 328 as “an extraterrito-
rial zoning ordinance,” Marjorie argued that regardless of pre-
emption, Ordinance No. 328 as applied violated § 17-1001(3)
by being an extraterritorial zoning ordinance that interfered
with or prevented an existing farming operation.
Marjorie disagreed with Polk’s argument that the ordi-
nance was pursuant to the Legislature’s grant in Neb. Rev.
Stat. §§ 17-536 and 17-537 (Reissue 2022) of jurisdiction
to pass and enforce necessary rules to prevent pollution of

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Nebraska Supreme Court Advance Sheets
319 Nebraska Reports
JOHNSON v. VILLAGE OF POLK
Cite as 319 Neb. 352
or injury to the source of water for the supply of the vil-
lage waterworks. Marjorie argued that, strictly construing the
grant and ensuring it did not conflict with the NGWMPA, the
Legislature did not confer upon cities and villages of the sec-
ond class the power to regulate privately owned water wells
but conferred the more limited authority to protect municipal
water sources from direct attacks. Marjorie did not address
whether the Wellhead Protection Area Act granted authority to
pass Ordinance No. 328.
The district court denied the request for declaratory judgment
and the “[p]etition in [e]rror.” Harmonizing the NGWMPA
with §§ 17-536, 17-537, and 17-1001(3), the court determined
the Legislature had given both the local NRDs and munici-
palities control over the water supplying municipalities’ water-
works, and it found no conflict preemption by virtue of the
different permit decisions by the Upper Big Blue NRD and
Polk. Finally, the court found Ordinance No. 328 did not vio-
late § 17-1001(3) as applied, because the land was previously
irrigated by virtue of an agreement with a neighbor and it was
“the dispute between neighbors as a result of [Marjorie’s] busi-
ness decision that resulted in [her] land being dry land and not
irrigated, not the actions of the ordinance.”
The court stated with respect to the petition in error that
it was difficult to discern whether the Village Board was act-
ing in a quasi-legislative or quasi-judicial capacity. Assuming
arguendo that there was jurisdiction over the petition in error,
the court found the Village Board’s decision was not arbitrary
or capricious.
ASSIGNMENTS OF ERROR
Marjorie assigns that the district court erred in determining
that (1) Ordinance No. 328 was not preempted, facially or as
applied, by the NGWMPA; (2) Ordinance No. 328 was not pre-
empted, facially or as applied, by the Upper Big Blue NRD’s
regulations; (3) as applied, Ordinance No. 328 did not exceed
the authority given to villages by § 17-1001; and (4) Polk had
statutory authority to enact Ordinance No. 328.

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Nebraska Supreme Court Advance Sheets
319 Nebraska Reports
JOHNSON v. VILLAGE OF POLK
Cite as 319 Neb. 352
STANDARD OF REVIEW
[1] Statutory interpretation is a matter of law in connection
with which an appellate court has an obligation to reach an
independent, correct conclusion irrespective of the determina-
tion made by the court below. 1
[2] An issue not presented to or decided by the trial court is
not appropriate for consideration on appeal. 2
ANALYSIS
Before us is the district court’s decision denying Marjorie’s
request for declaratory judgment. Marjorie failed to perfect
a petition in error to the district court because she did not
comply with the jurisdictional prerequisite of Neb. Rev. Stat.
§ 25-1905 (Reissue 2016) of filing, with the petition in error, a
transcript of the quasi-judicial proceedings or praecipe direct-
ing the tribunal, board, or officer to prepare the transcript of
the proceedings. 3 Therefore, the district court lacked jurisdic-
tion over the petition in error, and where a lower court lacks
jurisdiction to adjudicate the merits of a claim, issue, or ques-
tion, an appellate court also lacks the power to determine the
merits of the claim, issue, or question presented to the lower
court. 4 Therefore, this part of the appeal must be dismissed.
Marjorie does not argue on appeal that the Village Board’s
decision that the proposed well posed a risk to Polk’s drink-
ing water system was arbitrary and capricious, a challenge
which, in any event, is brought on petition in error. We limit
our review to whether the district court, following trial,
should have issued a declaratory judgment that the permit
requirement of Ordinance No. 328 is facially invalid or
1 Fitzke v. City of Hastings, 255 Neb. 46, 582 N.W.2d 301 (1998).
2 State ex rel. City of Alma v. Furnas Cty. Farms, 266 Neb. 558, 667 N.W.2d
512 (2003).
3 See, McNally v. City of Omaha, 273 Neb. 558, 731 N.W.2d 573 (2007);
Cole v. Kilgore, 241 Neb. 620, 489 N.W.2d 843 (1992). See, also, e.g.,
Meints v. City of Beatrice, 20 Neb. App. 129, 820 N.W.2d 90 (2012).
4 Muller v. Weeder, 313 Neb. 639, 986 N.W.2d 38 (2023).

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Nebraska Supreme Court Advance Sheets
319 Nebraska Reports
JOHNSON v. VILLAGE OF POLK
Cite as 319 Neb. 352
invalid as applied to Marjorie’s existing farming operation.
Marjorie argues that the ordinance was passed without statu-
tory authority, that it is preempted by the NGWMPA, and that
it violates § 17-1001 because it interferes with the conduct of
existing farming.
Ordinance
Ordinance No. 328 sets forth that its purpose is “to describe
the area surrounding the existing and future municipal water
wells to be protected” and locate “potential sources of [pollu-
tion] or injury to the municipal water supply.” It then gives a
metes and bounds description of Polk’s “Wellhead Protection
Area consisting of the following area in which there exists
the need of regulations regarding the location of existing and
future potential sources of pollution or injury to the public
water supply.” Also attached is a map showing the wellhead
protection area. The wellhead protection area does not extend
more than 1 mile beyond the corporate limits of Polk.
Section 3 of the ordinance provides that “[i]t shall be unlaw-
ful for any person to place, construct, or replace any of the
following structures . . . within the Wellhead Protection Area,
except as may be provided herein: DRILLING AND OPERA-
TION OF WELLS . . . WITHOUT PERMIT IS UNLAWFUL.”
Section 3 also gives the procedure to obtain a permit by com-
pleting and submitting an application to the Polk village clerk.
Section 4 of the ordinance provides, “The placing, constructing
or replacing of any structure or activity as set forth in Section
3 of this Ordinance shall not be permitted, after the effective
date of this Ordinance, unless a permit approved by the Village
Board . . . has been obtained.” Section 5 states that “[t]he
Chairman and [Village] Board . . . may approve the place-
ment, construction or replacement of a Section 3 Structure
or Activity within the Wellhead Protection Area only if the
[Village] Board determines that such placement, construction
or replacement will not cause contaminants to enter the public
water supply.”

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Nebraska Supreme Court Advance Sheets
319 Nebraska Reports
JOHNSON v. VILLAGE OF POLK
Cite as 319 Neb. 352
Statutory Grant of Authority
[3,4] First, we find that Ordinance No. 328 was passed
under the necessary statutory grant of power to the munici-
pality. Municipal corporations can exercise only such powers
as the Legislature has granted, 5 and statutes granting powers
to municipalities are to be strictly construed. 6 Under what
is commonly referred to as “Dillon’s Rule,” non-home-rule
municipal corporations possess and can exercise only (1) those
powers granted in express terms; (2) those powers necessar-
ily or fairly implied in, or incidental to, the powers expressly
granted; and (3) those powers essential to the declared objects
and purposes of the municipality, not merely convenient, but
indispensable. 7
The Wellhead Protection Area Act expressly grants, to vil-
lages and other “[c]ontrolling entit[ies],” 8 the power to “desig-
nate a wellhead protection area and adopt controls pursuant to
the Wellhead Protection Area Act for the purpose of protecting
the public water supply system.” 9 A “controlling entity” is
defined § 46-1502(1) as
a city, a village, a natural resources district, a rural water
district, any other entity, including, but not limited to, a
privately owned public water supply system, or any com-
bination thereof operating under an agreement pursuant to
the Interlocal Cooperation Act or the Joint Public Agency
Act that operates a public water supply system.
5 Dawson County v. Clark, 58 Neb. 756, 79 N.W. 822 (1899).
6 Fitzke v. City of Hastings, supra note 1. See, also, e.g. Chicago, St. P., M.
& O. Ry. Co. v. City of Randolph, 163 Neb. 687, 81 N.W.2d 159 (1957).
7 See, Home Builders Assn. v. City of Lincoln, 271 Neb. 353, 711 N.W.2d
871 (2006); In re Application of Lincoln Electric System, 265 Neb. 70,
655 N.W.2d 363 (2003); 2 Eugene McQuillin, The Law of Municipal
Corporations § 4:11 (3d ed. 2025); 2A Eugene McQuillin, The Law of
Municipal Corporations § 10:10 (3d ed. 2017).
8 § 46-1502(1).
9 § 46-1503 (emphasis supplied).

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JOHNSON v. VILLAGE OF POLK
Cite as 319 Neb. 352
A “[w]ellhead protection area” is defined by § 46-1502(4)
as “the surface and subsurface area surrounding a water well
or well field, supplying a public water system, through which
contaminants are reasonably likely to move toward and reach
such water well or well field.” Under the procedures for des-
ignating a wellhead protection area and its controls pursuant
to § 46-1504, the wellhead protection area is “based on all
reasonably available hydrogeologic information on ground
water flow, recharge, and discharge and other related informa-
tion” and identification “within each proposed wellhead pro-
tection area [of] all potential sources of contaminants which
may have any adverse effect on the health of persons.” The
controls are “to provide protection from contaminants which
may have any adverse effect on the health of persons served
by the public water supply system of each participating con-
trolling entity.” 10
The boundaries of the wellhead protection area and the con-
trols necessary to protect the water in the wellhead protection
area are approved by the Director of Environment and Energy
before they become effective. 11 “Such approval shall be based
on whether the boundaries of the wellhead protection area
are reasonably defined, the controls are reasonably related to
the purpose of ground water protection in the area, and such
approval is in the public interest.” 12
Under a different series of statutes generally governing the
powers of cities of the second class and villages, § 17-536
expressly grants to a village, such as Polk, jurisdiction extend-
ing 15 miles beyond its corporate limits to prevent any pol-
lution of or injury to the source of water for the supply of
waterworks. It states in full:
The jurisdiction of a city of the second class or vil-
lage to prevent any pollution or injury to the stream or
10 § 46-1504(5).
11 § 46-1506; § 46-1502(3).
12 § 46-1506.

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JOHNSON v. VILLAGE OF POLK
Cite as 319 Neb. 352
source of water for the supply of waterworks constructed
under sections 17-530 to 17-532 shall extend fifteen miles
beyond its corporate limits. 13
Section 17-537, in turn, expressly grants to the Village Board
the power to make and enforce all necessary rules in the man-
agement of its waterworks:
The city council of a city of the second class or village
board of trustees shall have power to make and enforce
all necessary rules and regulations in the construction,
use, and management of waterworks, mains, portion, or
extension of any system of waterworks or water supply
and for the use of the water from such system.
Other provisions involving village public waterworks grant the
power to make contracts with and authorize persons or entities
to erect and maintain a municipal system of waterworks and
water supply 14 and the power of the cities of the second class
and villages to require persons and entities operating any pub-
lic water supply to connect with and furnish water to the city
or village from its mains. 15
Section 17-1001, which is not specific to public water source
protection, generally extends the extraterritorial jurisdiction of
a village 1 mile beyond its corporate boundaries for zoning
regulations, property use regulations, and building ordinances,
among other things. Section 17-1001(3) states in part:
Any city of the second class or village may apply by
ordinance any existing or future zoning regulations, prop-
erty use regulations, building ordinances, electrical ordi-
nances, and plumbing ordinances within its extraterritorial
zoning jurisdiction, with the same force and effect as if
such area was within its corporate limits.
[5] Marjorie does not allege Polk’s wellhead protection
area and its controls were improperly designated under the
13 § 17-536 (emphasis supplied).
14 Neb. Rev. Stat. § 17-530 (Reissue 2022).
15 Neb. Rev. Stat. § 17-532 (Reissue 2022).

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JOHNSON v. VILLAGE OF POLK
Cite as 319 Neb. 352
procedures set forth in the Wellhead Protection Area Act, and
the record indicates otherwise. Instead, Marjorie argues, for
the first time on appeal, that the ordinance was not enacted in
accordance with a comprehensive development plan as required
by Neb. Rev. Stat. §§ 19-901 to 19-903 (Reissue 2022) for a
“zoning ordinance.” At the same time, she asserts Ordinance
No. 328 is not a “zoning ordinance,” and, thus, could not have
been adopted pursuant to the powers conferred by § 17-1001,
a position seemingly at odds with her argument that the ordi-
nance violated § 17-1001(3) being asserted for the first time on
appeal. We do not consider arguments and theories raised for
the first time on appeal. 16
[6] In considering the powers conferred to a municipality
by statute, we utilize the “intrinsic aid” of the in pari materia
doctrine, reading all statutes upon the same general subject
matter as part of one system and later statutes as supplemen-
tary or complementary to those preceding them. 17 When there
is a conflict between two statutes on the same subject, the
specific statute controls over the general. 18 We do not find
a conflict between the above statutes. We find that in pari
materia, the statutes expressly grant a village, such as Polk,
the geographically limited extraterritorial jurisdiction to make
and enforce rules in the management of its water supply for its
waterworks and to adopt controls over a designated wellhead
protection area for the purpose of protecting the public water
supply system.
Ordinance No. 328 requires a permit from the Village Board
for drilling new wells within the wellhead protection area for
Polk’s municipal water supply. Said wellhead protection area
lies within both the general 1-mile extraterritorial jurisdic-
tion of § 17-1001 and the 15-mile extraterritorial jurisdiction
16 In re Estate of Adelung, 306 Neb. 646, 947 N.W.2d 269 (2020).
17 See State v. Albarenga, 313 Neb. 72, 87, 982 N.W.2d 799, 812 (2022).
18 Wilkinson Development v. Ford & Ford Investments, 311 Neb. 476, 973
N.W.2d 349 (2022).

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JOHNSON v. VILLAGE OF POLK
Cite as 319 Neb. 352
under §§ 17-536 and 17-537 of Polk to prevent any pollution
of or injury to the stream or source of water for the supply of
its waterworks.
Nevertheless, Marjorie argues that because the above stat-
utes do not expressly authorize a village to require permits
from the village board for well drilling on private property,
under a strict construction of the grant of authority, Polk has
only the power to “directly prevent pollution or injury to
municipal water sources.” 19 She illustrates her understanding
of “directly prevent pollution” as criminalizing vandalism or
intentional poisoning of water sources for municipal water-
works. She states that, beyond that, “clear authority starts to
run out.” 20
[7] None of the statutes before us conferring powers to Polk
are specific in the objects of the controls or rules authorized.
Instead, they specifically define the purpose of the controls.
Even under strict construction, we do not read into statutes
words that are not there. 21 Thus, we will not read into these
statutes a “directly prevent” requirement.
Ordinance No. 328 was properly enacted pursuant to powers
incident to those expressly granted by statute through the rel-
evant statutory provisions of the Wellhead Protection Area Act
read together with §§ 17-536 and 17-537. We find no merit to
Marjorie’s contention that the ordinance was adopted without
statutory authority. We turn next to whether Ordinance No. 328
was preempted by the NGWMPA.
Field and Conflict Preemption
[8-10] Preemption of municipal ordinances by state law
is based on the fundamental principle that municipal ordi-
nances are inferior in status and subordinate to the laws of the
19 Brief for appellant at 17.
20 Id.
21 See Stewart v. Nebraska Dept. of Rev., 294 Neb. 1010, 885 N.W.2d 723
(2016).

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JOHNSON v. VILLAGE OF POLK
Cite as 319 Neb. 352
state. 22 State preemption arises with respect to municipal ordi-
nances or township laws and flows from the principle that
municipal legislation is invalid if it is repugnant to, or incon-
sistent with, state law. 23 When a court considers preemption
claims, it is obligated to harmonize, to the extent it legally
can be done, state and municipal enactments on the identical
subject. 24
[11] There are three types of preemption: (1) express pre-
emption, (2) field preemption, and (3) conflict preemption,
although the three categories are not “analytically air-tight.” 25
In all three cases, the touchstone of preemption analysis is
legislative intent. 26 The central question in a preemption case
is not whether the Legislature intended to grant authority to
municipalities to act concerning a particular matter, but, rather,
whether the Legislature intended to deny municipalities the
right to legislate on the subject. 27
[12] Marjorie does not argue express preemption. She
argues field preemption and conflict preemption. Field pre-
emption and conflict preemption arise in situations where the
Legislature did not explicitly express its intent to preempt local
laws, but such can be inferred from other circumstances. 28
[13-15] In conflict preemption, legislative intent to preempt
local laws is inferred to the extent that a local law actually
conflicts with state law. 29 Generally, an ordinance cannot pro-
hibit what the Legislature has expressly licensed, authorized,
22 State v. Albarenga, supra note 17.
23 Id.
24 See Malone v. City of Omaha, 294 Neb. 516, 883 N.W.2d 320 (2016).
25 State v. Albarenga, supra note 17, 313 Neb. at 84, 982 N.W.2d at 810
(internal quotation marks omitted).
26 State v. Albarenga, supra note 17.
27 State ex rel. City of Alma v. Furnas Cty. Farms, supra note 2.
28 Hauptman, O’Brien v. Auto-Owners Ins. Co., 310 Neb. 147, 964 N.W.2d
264 (2021).
29 Id.

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or permitted. 30 Conversely, without express legislative grant,
an ordinance cannot authorize what the statutes forbid. 31 A city
ordinance is inconsistent with a statute if it is contradictory in
a sense that the two legislative provisions cannot coexist. 32
[16,17] In field preemption, legislative intent to preempt
local laws is inferred from a comprehensive scheme of leg-
islation. 33 However, the mere fact that the Legislature has
enacted a law addressing a subject does not mean that the
subject matter is completely preempted. 34
Two 	cases 	involving 	the 	question 	of 	preemption 	by
Nebraska’s 	Environmental 	Protection 	Act 	(NEPA) 35 	over
municipal ordinances of pollution control, State ex rel. City
of Alma v. Furnas Cty. Farms 36 and Sarpy County v. City of
Springfield, 37 are instructive to the case at bar.
Sarpy County involved a dispute between a city of the
second class and a county over the county’s construction of a
solid waste disposal facility 1½ miles outside the city limits
and, thus, outside the city’s extraterritorial zoning jurisdiction
described by § 17-1001. By statute, 38 the county was given the
power to construct solid waste disposal facilities. The county
refused to apply for a permit with the city as required by city
ordinance for the construction of a solid waste disposal facil-
ity within 5 miles of the city limits if the waste disposal area
would be located over a ground water source that supplied
drinking water to the city residents.
30 State ex rel. City of Alma v. Furnas Cty. Farms, supra note 2.
31 Id.
32 Id.
33 Hauptman, O’Brien v. Auto-Owners Ins. Co., supra note 28.
34 Id.
35 Neb. Rev. Stat. §§ 81-1501 to 81-1532 (Reissue 2024).
36 State ex rel. City of Alma v. Furnas Cty. Farms, supra note 2.
37 Sarpy County v. City of Springfield, 241 Neb. 978, 492 N.W.2d 566
(1992).
38 Neb. Rev. Stat. § 23-379 (Reissue 1991).

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The county relied on a NEPA statute expressly stating
that before the then Director of Environmental Quality shall
approve a new solid waste disposal area outside the zoning
jurisdiction of a city or village, it shall be approved by the
county board; whereas before the director shall approve a new
solid waste disposal area inside the zoning jurisdiction of a city
or village, it shall be approved by the city council or village
board of trustees. 39
We agreed that this provision of NEPA on its face granted
to the county, rather than to the city, the authority to approve
the county’s proposed waste disposal area that was outside
the city’s extraterritorial zoning jurisdiction as defined by
§ 17-1001. While we observed that other provisions in NEPA
referred to local ordinances, we reasoned that those provi-
sions must be read in light of the express provision of NEPA
as to when the city, as opposed to the county board, must also
approve a new solid waste disposal area. We also recognized
that § 17-536 grants jurisdiction to a city, extending 15 miles
beyond its corporate limits, to prevent pollution of or injury to
the source of water for the supply of its waterworks. However,
strictly construing § 17-536 and reading it in pari materia with
the specific and express provision of NEPA requiring approval
by the county, rather than by the city, when the facility is out-
side the city’s 1-mile extraterritorial zoning jurisdiction, we
found the ordinance to be invalid as applied.
State ex rel. City of Alma involved a dispute between a
city and a private company constructing a large swine facility
with three solid and liquid waste lagoons, located approxi-
mately 8 miles outside the city limits. 40 The company refused
to comply with city ordinances governing livestock or other
facilities that create liquid or solid waste within 15 miles of
the city limits, and the city brought action for declaratory
judgment and injunctive relief. The company asserted that the
39 Id.
40 State ex rel. City of Alma v. Furnas Cty. Farms, supra note 2.

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ordinances were preempted because NEPA took precedence
over § 17-536 and that the City had no authority to prohibit
the erection of the swine facility through its regulations if the
Department of Environmental Quality issued a permit allow-
ing it. The lower court declared the ordinances valid and
granted an injunction.
The city ordinances required application for a permit, sub-
mission of a plan, compliance with the requirements imposed
by the Department of Environmental Quality, compliance with
additional environmental protections enumerated by ordinance,
and submission of a bond or financial guarantee that the
waste containment facilities would be closed in accordance
with applicable laws and regulations. The additional con-
trols imposed by city ordinance pertained to ground water
protection.
We affirmed in part and reversed in part. We held that
the ordinances challenged by the livestock farm were not
preempted by NEPA, with the exception of the ordinance
setting forth a bond requirement that was subject to conflict
preemption.
Despite NEPA’s conferral of substantial authority upon the
Department of Environmental Quality to exercise “exclusive
general supervision of the administration and enforcement of
[NEPA], the Integrated Solid Waste Management Act, [and]
the Livestock Waste Management Act”; the power to require
the submission of plans and issue permits or approvals as
required under those three acts; and the ability to “exercise all
incidental powers,” 41 we rejected the company’s argument that
NEPA demonstrated field preemption and that it took prece-
dence over the powers conferred to the city through § 17-536
to protect its public water supply. We observed that other pro-
visions of NEPA described the Department of Environmental
Quality’s power to “encourage local units of government
to handle . . . pollution problems within their respective
41 § 81-1504.

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jurisdictions and on a cooperative basis” 42; that nothing in
consultations for proposed installations “‘shall be construed to
relieve any person from compliance with . . . rules and regula-
tions in force pursuant to the acts, or any other provision of
law’” 43; and that a livestock operation “is not a nuisance if
. . . [i]t is in compliance with applicable regulations adopted
by the council and zoning regulations of the local governing
body having jurisdiction.” 44 Reading the statutory scheme as
a whole, we said, “[I]t is clear that the Legislature contem-
plated that municipalities would continue to enact ordinances
on the subject of pollution control after the enactment of
the NEPA.” 45
We found the ordinance and the applicable law in Sarpy
County distinguishable. 46 Our holding in Sarpy County, we
explained, was specifically limited to the application of the
then-existing provisions of NEPA to solid waste disposal
areas, which expressly limited the requirement of city coun-
cil approval to disposal areas within a city or village’s 1-mile
zoning jurisdiction. We pointed out that NEPA does not have
a similar provision limiting the authority of a city or village
to regulate a livestock confinement facility utilizing solid and
liquid waste storage lagoons.
However, we held that conflict preemption invalidated the
provision of a city ordinance that, without exception, required
an applicant for a permit to operate a livestock facility creat-
ing liquid or solid waste to submit a bond or financial guar-
antee to ensure waste containment facilities are closed in
accordance with applicable laws and regulations. The bond
42 § 81-1504(18).
43 State ex rel. City of Alma v. Furnas Cty. Farms, supra note 2, 266 Neb. at
572, 667 N.W.2d at 524, quoting § 81-1504.
44 § 81-1506(1)(b).
45 State ex rel. City of Alma v. Furnas Cty. Farms, supra note 2, 266 Neb. at
572, 667 N.W.2d at 524-25.
46 See Sarpy County v. City of Springfield, supra note 37.

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statute under NEPA expressly provided that the Environmental
Quality Council may exempt classes of permittees or licensees
from the requirement of a financial guarantee when there is
no significant risk to public health and welfare. 47 We therefore
held that the subject provision of the ordinance, by not allow-
ing exceptions to the financial guarantee requirement, in effect
prohibited what state law expressly allowed.
Similarly to NEPA’s conferral of powers to the Department
of Environmental Quality and, since July 2019, to the Depart-
ment of Environment and Energy, the NGWMPA gives local
NRDs legal authority to regulate ground water management,
including granting permits for new water wells. The local
NRDs are the “preferred regulators of activities which may
contribute to ground water contamination in both urban and
rural areas” 48 and are the “preferred regulators of activities
which may contribute to ground water depletion,” 49 “except as
otherwise specifically provided by statute.” 50
Section 46-735(1) states that “[a]ny person who intends
to construct a water well in a management area in this state
. . . shall . . . apply [for a permit] with the district in which
the water well will be located.” Section 46-738 states that the
“applicant shall commence construction” “[w]hen any permit
is approved”:
When any permit is approved pursuant to section
46-736, the applicant shall commence construction as
soon as possible after the date of approval and shall com-
plete the construction and equip the water well prior to
the date specified in the conditions of approval, which
date shall be not more than one year after the date of
approval, unless it is clearly demonstrated in the appli-
cation that one year is an insufficient period of time for
47 See § 81-1505(21)(a).
48 § 46-704(4).
49 § 46-702.
50 Id.

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such construction. If the applicant fails to complete the
project under the terms of the permit, the district may
withdraw the permit.
Section 46-706(5) includes, under the definition of “[i]llegal
water well,” one constructed or operated without or in viola-
tion of a permit required by the NGWMPA, one in violation
of NRD regulations, or one in violation of other state laws or
regulations promulgated pursuant to those laws.
The NGWMPA does not expressly state that the local NRDs
are the only regulators of the activities therein described. To
the contrary, besides generally referring to other statutory law,
§ 46-704 of the NGWMPA expressly acknowledges the author-
ity of the Department of Environment and Energy to regulate
sources of ground water contamination. Section 46-705 states
in part, “Nothing in the [NGWMPA] relating to the contami-
nation of ground water is intended to limit the powers of the
Department of Environment and Energy provided in Chapter
81, article 15.” We note that 2025 Neb. Laws, L.B. 317,
passed on May 6, 2025, provided that on or after July 1, 2025,
the Department of Natural Resources shall be merged into
the Department of Environment and Energy, which will be
renamed the Department of Water, Energy, and Environment.
[18] Like the provisions of any act or any number of acts,
we must read the statutes of the NGWMPA in pari materia
with each other and with statutes on the same subject so that
they are harmonized, if possible, while so construed as to
give some effect to every part. 51 The comprehensive scheme
at issue in determining whether field preemption invalidates
Ordinance No. 328 includes the Wellhead Protection Area Act
and the other statutes already discussed. The touchstone of
preemption analysis is legislative intent, and we must deter-
mine the purpose and intent of the Legislature from all the
relevant statutes.
51 See, A & P II v. Lancaster Cty. Bd. of Equal., 316 Neb. 216, 3 N.W.3d
907 (2024); State, ex rel. Rohrs, v. Harris, 100 Neb. 745, 161 N.W. 253
(1917); The People, ex rel., v. Weston, Auditor, 3 Neb. 312 (1874).

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As illustrated in State ex rel. City of Alma with respect
to NEPA, the extensiveness of the NRDs’ jurisdiction over
activities that may contribute to ground water depletion or
contamination does not by itself establish local NRDs as the
only entities permitted to control those activities. 52 While the
NGWMPA may not refer to local authority in exactly the same
manner NEPA does, both the Wellhead Protection Area Act
and §§ 17-536 and 17-537 specifically grant to villages, as
“controlling entities,” the power to adopt, with technical assist-
ance by the Department of Environment and Energy, controls
to protect the sources of water for municipal water supplies.
And expressly, the NGWMPA does not limit the powers of
the Department of Environment and Energy, with which Polk
developed its wellhead protection plan and under which the
Village Board was implementing its permit decisions.
As illustrated in State ex rel. City of Alma, an applicant
for an activity within the territory of two different regula-
tory bodies may properly be required to obtain a permit from
both. Permit schemes are not irreconcilable simply because
one imposes requirements that are stricter than the other. 53
As always, the real question is one of legislative intent. It
appears the Legislature intends local NRDs to have a broader
territorial jurisdiction and mandate that is compatible with the
controls of the smaller wellhead protection area, developed in
cooperation with the Department of Environment and Energy
and specific to the protection of a village or city’s water sup-
ply. Both entities can, under circumstances such as these,
require permits for drilling the same well.
52 State ex rel. City of Alma v. Furnas Cty. Farms, supra note 2.
53 See, State v. Dupier, 118 P.3d 1039 (Alaska 2005); Chamber of Commerce
v. City of Minneapolis, 944 N.W.2d 441 (Minn. 2020); Fondessy
Enterprises v. City of Oregon, 23 Ohio St. 3d 213, 492 N.E.2d 797 (1986).
See, also, e.g., Melissa Thorme, Local to Global: Citizen’s Legal Rights
and Remedies Relating to Toxic Waste Dumps, 5 Tul. Envtl. L.J. 101
(1991).

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Reading 	all 	the 	relevant 	statutes 	in 	pari 	materia, 	we
find that by granting NRDs the duty and power under the
NGWMPA to issue permits for drilling new wells within the
local NRD’s territory, the Legislature did not intend to deprive
other municipalities of their statutory authority to require per-
mits for wells within the wellhead protection area designed to
“provide protection from contaminants which may have any
adverse effect on the health of persons served by the public
water supply system of each participating controlling entity.” 54
In conclusion, the Legislature did not intend field preemption
through the NGWMPA.
We also hold there is no conflict preemption. Marjorie
argues Ordinance No. 328 kept her from drilling her well for
which she had a permit from the Upper Big Blue NRD, thereby
directly conflicting with the “mandate that she is to commence
construction as soon as possible” 55 under § 46-738 and the
Upper Big Blue NRD’s regulatory definition of a “permit” as
“a document obtained, in accordance with the [NGWMPA]
and these rules and regulations, authorizing the construction or
modification of a water well or its use.”
Because it was the denial of her application for a permit,
rather than the permit requirement of Ordinance No. 328,
that led to these alleged conflicts, this is an as-applied chal-
lenge, not a facial challenge as Marjorie suggests. As relevant
here, conflict preemption applies where state law specifically
permits the conduct that local law specifically prohibits.
The NGWMPA does not specifically permit drilling new
wells in wellhead protection areas. Nor does Ordinance No.
328 specifically prohibit drilling new wells in the wellhead
protection area. Thus, it is unclear how conflict preemp-
tion applies. Regardless, the requirement of § 46-738 that a
permittee complete construction within 1 year or risk losing
the permit does not suggest that the power of the NRDs to
54 § 46-1504(5).
55 Brief for appellant at 29.

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grant permits is exclusive. As for the regulatory definition of
“permit,” absent a statute’s express intent otherwise, we do
not incorporate regulations vertically into an in pari materia
reading of statutes. 56
Interfering With Existing Farming
Lastly, we consider whether by denying the permit, Polk
violated § 17-1001(3) because the denial interferes with the
conduct of existing farming operations. Section 17-1001(3)
provides in full:
Any city of the second class or village may apply by
ordinance 	any 	existing 	or 	future 	zoning 	regulations,
property use regulations, building ordinances, electrical
ordinances, and plumbing ordinances within its extra-
territorial zoning jurisdiction, with the same force and
effect as if such area was within its corporate limits.
No such ordinance shall be extended or applied so as to
prohibit, prevent, or interfere with the conduct of exist-
ing farming, livestock operations, businesses, or industry.
The fact that the extraterritorial zoning jurisdiction or
part thereof is located in a different county or counties
than some or all portions of the municipality shall not be
construed as affecting the powers of the city or village to
apply such ordinances.
The “conduct of existing farming” specified in § 17-1001(3)
has not been further defined by statute or our case law.
Assuming without deciding that this limitation would apply
to drilling a new well within a wellhead protection area gov-
erned by the Wellhead Protection Area Act, we agree with
the district court that the existing farming at the time the
permit was requested was dryland farming. We agree that it
was the deterioration of the relationship between Marjorie
and her neighbor, who had until that time permitted her to
use the well located on the neighbor’s land, which prevented
56 See State v. Albarenga, supra note 17.

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Marjorie from farming with irrigation. It was not the denial of
the permit. Accordingly, the conduct of existing farming was
not prohibited, prevented, or interfered with by the applica-
tion of Ordinance No. 328. The district court did not err in
concluding that Ordinance No. 328 as applied did not violate
§ 17-1001(3).
CONCLUSION
For the foregoing reasons, we dismiss for lack of jurisdic-
tion the appeal from the court’s decision denying the petition
in error and affirm the court’s decision denying declaratory
judgment.
Affirmed in part, and in part dismissed.