45-189
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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. |