State Codes and Statutes
Statutes > Nebraska > Chapter46 > 46-71346-713. Department ofNatural Resources; hydrologically connected water supplies; evaluation; report;determinations; revaluation;hearing; notice.(1)(a) By January1 of each year beginning in 2006 and except as otherwise provided in thissection and section 46-720, the Department of Natural Resources shall completean evaluation of the expected long-term availability of hydrologically connectedwater supplies for both existing and new surface water uses and existing andnew ground water uses in each of the state's river basins and shall issuea report that describes the results of the evaluation. For purposes of theevaluation and the report, a river basin may be divided into two or more subbasinsor reaches. A river basin, subbasin, or reach for which an integrated managementplan has been or is being developed pursuant to sections 46-715 to 46-717or pursuant to section 46-719 shall not be evaluated unless it is being reevaluatedas provided in subsection (2) of this section. For each river basin, subbasin,or reach evaluated, the report shall describe (i) the nature and extent ofuse of both surface water and ground water in each river basin, subbasin,or reach, (ii) the geographic area within which the department preliminarilyconsiders surface water and ground water to be hydrologically connected andthe criteria used for that determination, and (iii) the extent to which thethen-current uses affect available near-term and long-term water supplies.River basins, subbasins, and reaches designated as overappropriated in accordancewith subsection (4) of this section shall not be evaluated by the department. The department is not required to performan annual evaluation for a river basin, subbasin, or reach during the fouryears following a status change in such river basin, subbasin, or reach undersubsection (12) of section 46-714.(b) Based on the information reviewed in the evaluation process,the department shall arrive at a preliminary conclusion for each river basin,subbasin, and reach evaluated as to whether such river basin, subbasin, orreach presently is fully appropriated without the initiation of additionaluses. The department shall also determine if and how such preliminary conclusionwould change if no additional legal constraints were imposed on future developmentof hydrologically connected surface water and ground water and reasonableprojections are made about the extent and location of future development insuch river basin, subbasin, or reach.(c) In addition to the conclusion about whether a river basin,subbasin, or reach is fully appropriated, the department shall include inthe report, for informational purposes only, a summary of relevant data providedby any interested party concerning the social, economic, and environmentalimpacts of additional hydrologically connected surface water and ground wateruses on resources that are dependent on streamflow or ground water levelsbut are not protected by appropriations or regulations.(d) In preparing the report, the department shall rely onthe best scientific data, information, and methodologies readily availableto ensure that the conclusions and results contained in the report are reliable.In its report, the department shall provide sufficient documentation to allowthese data, information, methodologies, and conclusions to be independentlyreplicated and assessed. Upon request by the department, state agencies, naturalresources districts, irrigation districts, reclamation districts, public powerand irrigation districts, mutual irrigation companies, canal companies, municipalities,and other water users and stakeholders shall provide relevant data and informationin their possession. The Department of Natural Resources shall specify byrule and regulation the types of scientific data and other information thatwill be considered for making the preliminary determinations required by thissection.(2)(a) The department shall complete a reevaluation of a riverbasin, subbasin, or reach for which an integrated management plan has beenor is being prepared if the department has reason to believe that a reevaluationmight lead to a different determination about whether such river basin, subbasin,or reach is fully appropriated or overappropriated. A decision to reevaluatemay be reached by the department on its own or in response to a petition filedwith the department by any interested person. To be considered sufficientto justify a reevaluation, a petition shall be accompanied by supporting informationshowing that (i) new scientific data or other information relevant to thedetermination of whether the river basin, subbasin, or reach is fully appropriatedor overappropriated has become available since the last evaluation of suchriver basin, subbasin, or reach, (ii) the department relied on incorrect orincomplete information when the river basin, subbasin, or reach was last evaluated,or (iii) the department erred in its interpretation or application of theinformation available when the river basin, subbasin, or reach was last evaluated.If a petition determined by the department to be sufficient is filed beforeJuly 1 of any year, the reevaluation of the river basin, subbasin, or reachinvolved shall be included in the next annual report prepared in accordancewith subsection (1) of this section. If any such petition is filed on or afterJuly 1 of any year, the department may defer the reevaluation of the riverbasin, subbasin, or reach involved until the second annual report after suchfiling.(b) If the reevaluation results in a different determinationby the department, then (i) the department shall notify, by certified mail,the affected natural resources districts and any irrigation district, publicpower and irrigation district, mutual irrigation company, canal company, ormunicipality that relies on water from the affected river basin, subbasin,or reach of the preliminary change in the determination and (ii) the departmentshall hold one or more public hearings not more than ninety days after thepublication of the notice required in subdivision (b)(i) of this subsection.Notice of the hearings shall be provided in the same manner as the noticerequired in subsection (1) of section 46-714. Any interested person may appearat the hearing and present written or oral testimony and evidence concerningthe appropriation status of the river basin, subbasin, or reach.(c) Within thirty days after the final hearing under subdivision(b) of this subsection, the department shall notify the appropriate naturalresources districts of the department's final determination with respect tothe appropriation status of the river basin, subbasin, or reach.(3) A river basin, subbasin, or reach shall be deemed fullyappropriated if the department determines based upon its evaluation conductedpursuant to subsection (1) of this section and information presented at thehearing pursuant to subsection (4) of section 46-714 that then-current usesof hydrologically connected surface water and ground water in the river basin,subbasin, or reach cause or will in the reasonably foreseeable future cause(a) the surface water supply to be insufficient to sustain over the long termthe beneficial or useful purposes for which existing natural-flow or storageappropriations were granted and the beneficial or useful purposes for which,at the time of approval, any existing instream appropriation was granted,(b) the streamflow to be insufficient to sustain over the long term the beneficialuses from wells constructed in aquifers dependent on recharge from the riveror stream involved, or (c) reduction in the flow of a river or stream sufficientto cause noncompliance by Nebraska with an interstate compact or decree, otherformal state contract or agreement, or applicable state or federal laws.(4)(a) A river basin, subbasin, or reach shall be deemed overappropriatedif, on July 16, 2004, the river basin, subbasin, or reach is subject to aninterstate cooperative agreement among three or more states and if, priorto such date, the department has declared a moratorium on the issuance ofnew surface water appropriations in such river basin, subbasin, or reach andhas requested each natural resources district with jurisdiction in the affectedarea in such river basin, subbasin, or reach either (i) to close or to continuein effect a previously adopted closure of all or part of such river basin,subbasin, or reach to the issuance of additional water well permits in accordancewith subdivision (1)(k) of section 46-656.25 as such section existed priorto July 16, 2004, or (ii) to temporarily suspend or to continue in effecta temporary suspension, previously adopted pursuant to section 46-656.28 assuch section existed prior to July 16, 2004, on the drilling of new waterwells in all or part of such river basin, subbasin, or reach.(b) Within sixty days after July 16, 2004, the departmentshall designate which river basins, subbasins, or reaches are overappropriated.The designation shall include a description of the geographic area withinwhich the department has determined that surface water and ground water arehydrologically connected and the criteria used to make such determination. SourceLaws 2004, LB 962, § 53; Laws 2006, LB 1226, § 23; Laws 2009, LB54, § 1; Laws 2009, LB483, § 3.
