Nebraska Revised Statute 46-226

Revised Statutes » Chapter 46 » 46-226
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46-226. Determination of priority and amount of appropriation; duty of department; certain court orders; department; powers.

(1) The department shall make proper arrangements for the determination of priorities of right to use the public waters of the state and determine the same. The method of determining the priority and amount of appropriation shall be fixed by the department.

(2)(a) The department is authorized to administer any riparian water right that has been validated and recognized in a court order from a court of lawful jurisdiction in the state.

(b) The only surface water appropriations that may be closed for a riparian water right are appropriations held by persons who were parties to the lawsuit validating the riparian water right or appropriations with a priority date subsequent to the date of the court order.

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The Department of Natural Resources regulates the appropriation of surface water and has statutory authority to determine the priority and amount of surface water appropriated. Koch v. Aupperle, 274 Neb. 52, 737 N.W.2d 869 (2007).

The Department of Natural Resources has no common-law or statutory duty to regulate the use of ground water in order to protect a party's surface water appropriations. In the absence of independent authority to regulate the use of ground water, the department has no legal duty to resolve conflicts between surface water appropriators and ground water users. Spear T Ranch v. Nebraska Dept. of Nat. Resources, 270 Neb. 130, 699 N.W.2d 379 (2005).

The Department of Natural Resources has no independent authority to regulate ground water users or administer ground water rights for the benefit of surface water appropriators. In re Complaint of Central Neb. Pub. Power, 270 Neb. 108, 699 N.W.2d 372 (2005).

Method of determining priority and amount of appropriation is vested in the exclusive original jurisdiction of the Department of Water Resources. Ainsworth Irr. Dist. v. Harms, 170 Neb. 228, 102 N.W.2d 429 (1960).

Department has authority to determine whether or not appropriation has been lost by nonuser. State v. Nielsen, 163 Neb. 372, 79 N.W.2d 721 (1956).

Under former law, Department of Roads and Irrigation could grant such appropriation for use of water of natural running stream as did not impair prior appropriations and rights to use water and could issue permits for improvements of streams, but could not determine damages or property rights involved. City of Fairbury v. Fairbury Mill & Elevator Co., 123 Neb. 588, 243 N.W. 774 (1932).

Powers of former State Board of Irrigation were quasi-judicial, and adjudications were final, unless appealed from. Enterprise Irr. Dist. v. Tri-State Land Co., 92 Neb. 121, 138 N.W. 171 (1912); Farmers Canal Co. v. Frank, 72 Neb. 136, 100 N.W. 286 (1904).