State Codes and Statutes

Statutes > Nebraska > Chapter46 > 46-290

46-290. Appropriation; applicationto transfer or change; contents; approval.(1)(a)Except as provided in this section and sections 46-2,120 to 46-2,130, anyperson having a permit to appropriate water for beneficial purposes issuedpursuant to sections 46-233 to 46-235, 46-240.01, 46-241, 46-242, or 46-637and who desires (i) to transfer the use of such appropriation to a locationother than the location specified in the permit, (ii) to change that appropriationto a different type of appropriation as provided in subsection (3) of thissection, or (iii) to change the purpose for which the water is to be usedunder a natural-flow, storage, or storage-use appropriation to a purpose notat that time permitted under the appropriation shall apply for approval ofsuch transfer or change to the Department of Natural Resources.(b) The application for such approval shall contain (i) thenumber assigned to such appropriation by the department, (ii) the name andaddress of the present holder of the appropriation, (iii) if applicable, thename and address of the person or entity to whom the appropriation would betransferred or who will be the user of record after a change in the locationof use, type of appropriation, or purpose of use under the appropriation,(iv) the legal description of the land to which the appropriation is now appurtenant,(v) thename and address of each holder of a mortgage, trust deed, or other equivalentconsensual security interest against the tract or tracts of land to whichthe appropriation is now appurtenant, (vi) if applicable, thelegal description of the land to which the appropriation is proposed to betransferred, (vii) if a transfer is proposed, whether other sources of waterare available at the original location of use and whether any provisions havebeen made to prevent either use of a new source of water at the original locationor increased use of water from any existing source at that location, (viii)if applicable, the legal descriptions of the beginning and end of the streamreach to which the appropriation is proposed to be transferred for the purposeof augmenting the flows in that stream reach, (ix) if a proposed transferis for the purpose of increasing the quantity of water available for use pursuantto another appropriation, the number assigned to such other appropriationby the department, (x) the purpose of the current use, (xi) if a change inpurpose of use is proposed, the proposed purpose of use, (xii) if a changein the type of appropriation is proposed, the type of appropriation to whicha change is desired, (xiii) if a proposed transfer or change is to be temporaryin nature, the duration of the proposed transfer or change, and (xiv) suchother information as the department by rule and regulation requires.(2) If a proposed transfer or change is to be temporary innature, a copy of the proposed agreement between the current appropriatorand the person who is to be responsible for use of water under the appropriationwhile the transfer or change is in effect shall be submitted at the same timeas the application.(3) Regardless of whether a transfer or a change in the purposeof use is involved, the following changes in type of appropriation, if foundby the Director of Natural Resources to be consistent with section 46-294,may be approved subject to the following:(a) A natural-flow appropriation for direct out-of-streamuse may be changed to a natural-flow appropriation for aboveground reservoirstorage or for intentional underground water storage;(b) A natural-flow appropriation for intentional undergroundwater storage may be changed to a natural-flow appropriation for direct out-of-streamuse or for aboveground reservoir storage;(c) A natural-flow appropriation for direct out-of-streamuse, for aboveground reservoir storage, or for intentional underground waterstorage may be changed to an instream appropriation subject to sections 46-2,107to 46-2,119 if the director determines that the resulting instream appropriationwould be consistent with subdivisions (2), (3), and (4) of section 46-2,115;(d) A natural-flow appropriation for direct out-of-streamuse, for aboveground reservoir storage, or for intentional underground waterstorage may be changed to an appropriation for induced ground water rechargeif the director determines that the resulting appropriation for induced groundwater recharge would be consistent with subdivisions (2)(a)(i) and (ii) ofsection 46-235; and(e) The incidental underground water storage portion, whetheror not previously quantified, of a natural-flow or storage-use appropriationmay be separated from the direct-use portion of the appropriation and maybe changed to a natural-flow or storage-use appropriation for intentionalunderground water storage at the same location if the historic consumptiveuse of the direct-use portion of the appropriation is transferred to anotherlocation or is terminated, but such a separation and change may be approvedonly if, after the separation and change, (i) the total permissible diversionunder the appropriation will not increase, (ii) the projected consequencesof the separation and change are consistent with the provisions of any integratedmanagement plan adopted in accordance with section 46-718 or 46-719 for thegeographic area involved, and (iii) if the location of the proposed intentionalunderground water storage is in a river basin, subbasin, or reach designatedas overappropriated in accordance with section 46-713, the integrated managementplan for that river basin, subbasin, or reach has gone into effect, and thatplan requires that the amount of the intentionally stored water that is consumedafter the change will be no greater than the amount of the incidentally storedwater that was consumed prior to the change. Approval of a separation andchange pursuant to this subdivision (e) shall not exempt any consumptive useassociated with the incidental recharge right from any reduction in wateruse required by an integrated management plan for a river basin, subbasin,or reach designated as overappropriated in accordance with section 46-713.Whenever any change in type of appropriation is approved pursuantto this subsection and as long as that change remains in effect, the appropriationshall be subject to the statutes, rules, and regulations that apply to thetype of appropriation to which the change has been made.(4) The Legislature finds that induced ground water rechargeappropriations issued pursuant to sections 46-233 and 46-235 and instreamappropriations issued pursuant to section 46-2,115 are specific to the locationidentified in the appropriation. Neither type of appropriation shall be transferredto a different location, changed to a different type of appropriation, orchanged to permit a different purpose of use.(5) In addition to any other purposes for which transfersand changes may be approved, such transfers and changes may be approved ifthe purpose is (a) to augment the flow in a specific stream reach for anyinstream use that the department has determined, through rules and regulations,to be a beneficial use or (b) to increase the frequency that a diversion rateor rate of flow specified in another valid appropriation is achieved.For any transfer or change approved pursuant to subdivision(a) of this subsection, the department shall be provided with a report atleast every five years while such transfer or change is in effect. The purposeof such report shall be to indicate whether the beneficial instream use forwhich the flow is augmented continues to exist. If the report indicates thatit does not or if no report is filed within sixty days after the department'snotice to the appropriator that the deadline for filing the report has passed,the department may cancel its approval of the transfer or change and suchappropriation shall revert to the same location of use, type of appropriation,and purpose of use as prior to such approval.(6) A quantified or unquantified appropriation for incidentalunderground water storage may be transferred to a new location along withthe direct-use appropriation with which it is recognized if the director findssuch transfer to be consistent with section 46-294 and determines that thegeologic and other relevant conditions at the new location are such that incidentalunderground water storage will occur at the new location. The director mayrequest such information from the applicant as is needed to make such determinationand may modify any such quantified appropriation for incidental undergroundwater storage, if necessary, to reflect the geologic and other conditionsat the new location.(7) Unless an incidental underground water storage appropriationis changed as authorized by subdivision (3)(e) of this section or is transferredas authorized by subsection (6) of this section or subsection (1) of section 46-291, such appropriation shall be canceled or modified, as appropriate,by the director to reflect any reduction in water that will be stored undergroundas the result of a transfer or change of the direct-use appropriation withwhich the incidental underground water storage was recognized prior to thetransfer or change. SourceLaws 1983, LB 21, § 2; Laws 1995, LB 99, § 17; Laws 2000, LB 900, § 131; Laws 2004, LB 962, § 16; Laws 2006, LB 1226, § 10; Laws 2009, LB477, § 1.

State Codes and Statutes

Statutes > Nebraska > Chapter46 > 46-290

46-290. Appropriation; applicationto transfer or change; contents; approval.(1)(a)Except as provided in this section and sections 46-2,120 to 46-2,130, anyperson having a permit to appropriate water for beneficial purposes issuedpursuant to sections 46-233 to 46-235, 46-240.01, 46-241, 46-242, or 46-637and who desires (i) to transfer the use of such appropriation to a locationother than the location specified in the permit, (ii) to change that appropriationto a different type of appropriation as provided in subsection (3) of thissection, or (iii) to change the purpose for which the water is to be usedunder a natural-flow, storage, or storage-use appropriation to a purpose notat that time permitted under the appropriation shall apply for approval ofsuch transfer or change to the Department of Natural Resources.(b) The application for such approval shall contain (i) thenumber assigned to such appropriation by the department, (ii) the name andaddress of the present holder of the appropriation, (iii) if applicable, thename and address of the person or entity to whom the appropriation would betransferred or who will be the user of record after a change in the locationof use, type of appropriation, or purpose of use under the appropriation,(iv) the legal description of the land to which the appropriation is now appurtenant,(v) thename and address of each holder of a mortgage, trust deed, or other equivalentconsensual security interest against the tract or tracts of land to whichthe appropriation is now appurtenant, (vi) if applicable, thelegal description of the land to which the appropriation is proposed to betransferred, (vii) if a transfer is proposed, whether other sources of waterare available at the original location of use and whether any provisions havebeen made to prevent either use of a new source of water at the original locationor increased use of water from any existing source at that location, (viii)if applicable, the legal descriptions of the beginning and end of the streamreach to which the appropriation is proposed to be transferred for the purposeof augmenting the flows in that stream reach, (ix) if a proposed transferis for the purpose of increasing the quantity of water available for use pursuantto another appropriation, the number assigned to such other appropriationby the department, (x) the purpose of the current use, (xi) if a change inpurpose of use is proposed, the proposed purpose of use, (xii) if a changein the type of appropriation is proposed, the type of appropriation to whicha change is desired, (xiii) if a proposed transfer or change is to be temporaryin nature, the duration of the proposed transfer or change, and (xiv) suchother information as the department by rule and regulation requires.(2) If a proposed transfer or change is to be temporary innature, a copy of the proposed agreement between the current appropriatorand the person who is to be responsible for use of water under the appropriationwhile the transfer or change is in effect shall be submitted at the same timeas the application.(3) Regardless of whether a transfer or a change in the purposeof use is involved, the following changes in type of appropriation, if foundby the Director of Natural Resources to be consistent with section 46-294,may be approved subject to the following:(a) A natural-flow appropriation for direct out-of-streamuse may be changed to a natural-flow appropriation for aboveground reservoirstorage or for intentional underground water storage;(b) A natural-flow appropriation for intentional undergroundwater storage may be changed to a natural-flow appropriation for direct out-of-streamuse or for aboveground reservoir storage;(c) A natural-flow appropriation for direct out-of-streamuse, for aboveground reservoir storage, or for intentional underground waterstorage may be changed to an instream appropriation subject to sections 46-2,107to 46-2,119 if the director determines that the resulting instream appropriationwould be consistent with subdivisions (2), (3), and (4) of section 46-2,115;(d) A natural-flow appropriation for direct out-of-streamuse, for aboveground reservoir storage, or for intentional underground waterstorage may be changed to an appropriation for induced ground water rechargeif the director determines that the resulting appropriation for induced groundwater recharge would be consistent with subdivisions (2)(a)(i) and (ii) ofsection 46-235; and(e) The incidental underground water storage portion, whetheror not previously quantified, of a natural-flow or storage-use appropriationmay be separated from the direct-use portion of the appropriation and maybe changed to a natural-flow or storage-use appropriation for intentionalunderground water storage at the same location if the historic consumptiveuse of the direct-use portion of the appropriation is transferred to anotherlocation or is terminated, but such a separation and change may be approvedonly if, after the separation and change, (i) the total permissible diversionunder the appropriation will not increase, (ii) the projected consequencesof the separation and change are consistent with the provisions of any integratedmanagement plan adopted in accordance with section 46-718 or 46-719 for thegeographic area involved, and (iii) if the location of the proposed intentionalunderground water storage is in a river basin, subbasin, or reach designatedas overappropriated in accordance with section 46-713, the integrated managementplan for that river basin, subbasin, or reach has gone into effect, and thatplan requires that the amount of the intentionally stored water that is consumedafter the change will be no greater than the amount of the incidentally storedwater that was consumed prior to the change. Approval of a separation andchange pursuant to this subdivision (e) shall not exempt any consumptive useassociated with the incidental recharge right from any reduction in wateruse required by an integrated management plan for a river basin, subbasin,or reach designated as overappropriated in accordance with section 46-713.Whenever any change in type of appropriation is approved pursuantto this subsection and as long as that change remains in effect, the appropriationshall be subject to the statutes, rules, and regulations that apply to thetype of appropriation to which the change has been made.(4) The Legislature finds that induced ground water rechargeappropriations issued pursuant to sections 46-233 and 46-235 and instreamappropriations issued pursuant to section 46-2,115 are specific to the locationidentified in the appropriation. Neither type of appropriation shall be transferredto a different location, changed to a different type of appropriation, orchanged to permit a different purpose of use.(5) In addition to any other purposes for which transfersand changes may be approved, such transfers and changes may be approved ifthe purpose is (a) to augment the flow in a specific stream reach for anyinstream use that the department has determined, through rules and regulations,to be a beneficial use or (b) to increase the frequency that a diversion rateor rate of flow specified in another valid appropriation is achieved.For any transfer or change approved pursuant to subdivision(a) of this subsection, the department shall be provided with a report atleast every five years while such transfer or change is in effect. The purposeof such report shall be to indicate whether the beneficial instream use forwhich the flow is augmented continues to exist. If the report indicates thatit does not or if no report is filed within sixty days after the department'snotice to the appropriator that the deadline for filing the report has passed,the department may cancel its approval of the transfer or change and suchappropriation shall revert to the same location of use, type of appropriation,and purpose of use as prior to such approval.(6) A quantified or unquantified appropriation for incidentalunderground water storage may be transferred to a new location along withthe direct-use appropriation with which it is recognized if the director findssuch transfer to be consistent with section 46-294 and determines that thegeologic and other relevant conditions at the new location are such that incidentalunderground water storage will occur at the new location. The director mayrequest such information from the applicant as is needed to make such determinationand may modify any such quantified appropriation for incidental undergroundwater storage, if necessary, to reflect the geologic and other conditionsat the new location.(7) Unless an incidental underground water storage appropriationis changed as authorized by subdivision (3)(e) of this section or is transferredas authorized by subsection (6) of this section or subsection (1) of section 46-291, such appropriation shall be canceled or modified, as appropriate,by the director to reflect any reduction in water that will be stored undergroundas the result of a transfer or change of the direct-use appropriation withwhich the incidental underground water storage was recognized prior to thetransfer or change. SourceLaws 1983, LB 21, § 2; Laws 1995, LB 99, § 17; Laws 2000, LB 900, § 131; Laws 2004, LB 962, § 16; Laws 2006, LB 1226, § 10; Laws 2009, LB477, § 1.

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State Codes and Statutes

Statutes > Nebraska > Chapter46 > 46-290

46-290. Appropriation; applicationto transfer or change; contents; approval.(1)(a)Except as provided in this section and sections 46-2,120 to 46-2,130, anyperson having a permit to appropriate water for beneficial purposes issuedpursuant to sections 46-233 to 46-235, 46-240.01, 46-241, 46-242, or 46-637and who desires (i) to transfer the use of such appropriation to a locationother than the location specified in the permit, (ii) to change that appropriationto a different type of appropriation as provided in subsection (3) of thissection, or (iii) to change the purpose for which the water is to be usedunder a natural-flow, storage, or storage-use appropriation to a purpose notat that time permitted under the appropriation shall apply for approval ofsuch transfer or change to the Department of Natural Resources.(b) The application for such approval shall contain (i) thenumber assigned to such appropriation by the department, (ii) the name andaddress of the present holder of the appropriation, (iii) if applicable, thename and address of the person or entity to whom the appropriation would betransferred or who will be the user of record after a change in the locationof use, type of appropriation, or purpose of use under the appropriation,(iv) the legal description of the land to which the appropriation is now appurtenant,(v) thename and address of each holder of a mortgage, trust deed, or other equivalentconsensual security interest against the tract or tracts of land to whichthe appropriation is now appurtenant, (vi) if applicable, thelegal description of the land to which the appropriation is proposed to betransferred, (vii) if a transfer is proposed, whether other sources of waterare available at the original location of use and whether any provisions havebeen made to prevent either use of a new source of water at the original locationor increased use of water from any existing source at that location, (viii)if applicable, the legal descriptions of the beginning and end of the streamreach to which the appropriation is proposed to be transferred for the purposeof augmenting the flows in that stream reach, (ix) if a proposed transferis for the purpose of increasing the quantity of water available for use pursuantto another appropriation, the number assigned to such other appropriationby the department, (x) the purpose of the current use, (xi) if a change inpurpose of use is proposed, the proposed purpose of use, (xii) if a changein the type of appropriation is proposed, the type of appropriation to whicha change is desired, (xiii) if a proposed transfer or change is to be temporaryin nature, the duration of the proposed transfer or change, and (xiv) suchother information as the department by rule and regulation requires.(2) If a proposed transfer or change is to be temporary innature, a copy of the proposed agreement between the current appropriatorand the person who is to be responsible for use of water under the appropriationwhile the transfer or change is in effect shall be submitted at the same timeas the application.(3) Regardless of whether a transfer or a change in the purposeof use is involved, the following changes in type of appropriation, if foundby the Director of Natural Resources to be consistent with section 46-294,may be approved subject to the following:(a) A natural-flow appropriation for direct out-of-streamuse may be changed to a natural-flow appropriation for aboveground reservoirstorage or for intentional underground water storage;(b) A natural-flow appropriation for intentional undergroundwater storage may be changed to a natural-flow appropriation for direct out-of-streamuse or for aboveground reservoir storage;(c) A natural-flow appropriation for direct out-of-streamuse, for aboveground reservoir storage, or for intentional underground waterstorage may be changed to an instream appropriation subject to sections 46-2,107to 46-2,119 if the director determines that the resulting instream appropriationwould be consistent with subdivisions (2), (3), and (4) of section 46-2,115;(d) A natural-flow appropriation for direct out-of-streamuse, for aboveground reservoir storage, or for intentional underground waterstorage may be changed to an appropriation for induced ground water rechargeif the director determines that the resulting appropriation for induced groundwater recharge would be consistent with subdivisions (2)(a)(i) and (ii) ofsection 46-235; and(e) The incidental underground water storage portion, whetheror not previously quantified, of a natural-flow or storage-use appropriationmay be separated from the direct-use portion of the appropriation and maybe changed to a natural-flow or storage-use appropriation for intentionalunderground water storage at the same location if the historic consumptiveuse of the direct-use portion of the appropriation is transferred to anotherlocation or is terminated, but such a separation and change may be approvedonly if, after the separation and change, (i) the total permissible diversionunder the appropriation will not increase, (ii) the projected consequencesof the separation and change are consistent with the provisions of any integratedmanagement plan adopted in accordance with section 46-718 or 46-719 for thegeographic area involved, and (iii) if the location of the proposed intentionalunderground water storage is in a river basin, subbasin, or reach designatedas overappropriated in accordance with section 46-713, the integrated managementplan for that river basin, subbasin, or reach has gone into effect, and thatplan requires that the amount of the intentionally stored water that is consumedafter the change will be no greater than the amount of the incidentally storedwater that was consumed prior to the change. Approval of a separation andchange pursuant to this subdivision (e) shall not exempt any consumptive useassociated with the incidental recharge right from any reduction in wateruse required by an integrated management plan for a river basin, subbasin,or reach designated as overappropriated in accordance with section 46-713.Whenever any change in type of appropriation is approved pursuantto this subsection and as long as that change remains in effect, the appropriationshall be subject to the statutes, rules, and regulations that apply to thetype of appropriation to which the change has been made.(4) The Legislature finds that induced ground water rechargeappropriations issued pursuant to sections 46-233 and 46-235 and instreamappropriations issued pursuant to section 46-2,115 are specific to the locationidentified in the appropriation. Neither type of appropriation shall be transferredto a different location, changed to a different type of appropriation, orchanged to permit a different purpose of use.(5) In addition to any other purposes for which transfersand changes may be approved, such transfers and changes may be approved ifthe purpose is (a) to augment the flow in a specific stream reach for anyinstream use that the department has determined, through rules and regulations,to be a beneficial use or (b) to increase the frequency that a diversion rateor rate of flow specified in another valid appropriation is achieved.For any transfer or change approved pursuant to subdivision(a) of this subsection, the department shall be provided with a report atleast every five years while such transfer or change is in effect. The purposeof such report shall be to indicate whether the beneficial instream use forwhich the flow is augmented continues to exist. If the report indicates thatit does not or if no report is filed within sixty days after the department'snotice to the appropriator that the deadline for filing the report has passed,the department may cancel its approval of the transfer or change and suchappropriation shall revert to the same location of use, type of appropriation,and purpose of use as prior to such approval.(6) A quantified or unquantified appropriation for incidentalunderground water storage may be transferred to a new location along withthe direct-use appropriation with which it is recognized if the director findssuch transfer to be consistent with section 46-294 and determines that thegeologic and other relevant conditions at the new location are such that incidentalunderground water storage will occur at the new location. The director mayrequest such information from the applicant as is needed to make such determinationand may modify any such quantified appropriation for incidental undergroundwater storage, if necessary, to reflect the geologic and other conditionsat the new location.(7) Unless an incidental underground water storage appropriationis changed as authorized by subdivision (3)(e) of this section or is transferredas authorized by subsection (6) of this section or subsection (1) of section 46-291, such appropriation shall be canceled or modified, as appropriate,by the director to reflect any reduction in water that will be stored undergroundas the result of a transfer or change of the direct-use appropriation withwhich the incidental underground water storage was recognized prior to thetransfer or change. SourceLaws 1983, LB 21, § 2; Laws 1995, LB 99, § 17; Laws 2000, LB 900, § 131; Laws 2004, LB 962, § 16; Laws 2006, LB 1226, § 10; Laws 2009, LB477, § 1.

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