45-189. Reversion of rights due to nonuse;
notice; hearing; order; exception
A. When it appears to the director that a person entitled to the use of water has
not beneficially used all or a portion of the water right for a period of five or more
consecutive years, and it appears that the right has or may have reverted to the state
because of such nonuse, as provided by section 45-141 and section 45-188, subsection A,
the director shall notify such person to show cause at an administrative hearing why the
right or portion of the right should not be declared relinquished.
B. The notice shall contain:
1. The time and place of the hearing.
2. A description of the water right, including the approximate location of the
point of diversion, the general description of the lands or places where such waters were
used, the water source, the amount involved, the purpose of use, the apparent authority
upon which the right is based and the factual basis for the notice to show cause.
3. A statement that unless sufficient cause is shown the water right will be
declared relinquished.
C. The notice shall be served at least thirty days before the hearing.
D. The director shall make an order determining whether such water right has been
relinquished and give notice to each party of the order by serving such persons at their
last known addresses.
E. For the purposes of this section, section 45-141, subsection C and section
45-188, subsection A, the following reasons shall be sufficient cause for nonuse:
1. Drought, or other unavailability of water.
2. Active service in the armed forces of the United States during military crisis.
3. Nonvoluntary service in the armed forces of the United States.
4. The operation of legal proceedings.
5. Federal, state or local laws imposing land or water use restrictions, or acreage
limitations, or production quotas.
6. Compliance with an applicable conservation requirement established by the
director pursuant to chapter 2, article 9 of this title.
7. With respect to a water right appropriated for an irrigation use, either of the
following:
(a) Pendency of a proceeding before a court or the director to change the permitted
use from irrigation to municipal or other uses pursuant to a court decree or section
45-156 or to sever the right from the land to which it is appurtenant and transfer it for
municipal use pursuant to section 45-172.
(b) After a change in the permitted use from irrigation to municipal pursuant to a
court decree or section 45-156 or 45-172, insufficient demand for the water by the
municipal users.
8. The reconstruction, replacement, reconfiguration or maintenance of water storage
or distribution facilities, using reasonable diligence including the failure to divert or
store water as a result of those activities.
9. An agreement between the holder of a reservoir right and the United States, this
state or any city, county or other municipal or governmental entity to leave a minimum
pool of water in the reservoir for the benefit of the public for recreation, fish and
wildlife purposes.
10. Use of the water appropriated on less than all of the land to which the right is
appurtenant.
11. An agreement between the operator of a reservoir and a person entitled to the
use of water stored in the reservoir allowing the water to be withdrawn over a period of
time exceeding five years.
12. A written agreement between two or more appropriators of water pursuant to which
one or more of the appropriators agrees to forbear the exercise of its water right, in
whole or in part, for the benefit of one or more appropriators within the same river
system and source if the appropriator who forbears exercise of the right continues the
beneficial use associated with the right.
13. Any other reason that a court of competent jurisdiction deems would warrant
nonuse.
F. Section 45-114, subsections A and B govern administrative proceedings, rehearing
or review and judicial review of final decisions of the director under this section.
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