46-226 Determination of priority and amount of appropriation; duty of department; certain court orders; department; powers.
46-226. Determination of priority and amountof appropriation; duty of department;certain court orders; department; powers.(1) The departmentshall make proper arrangements for the determination of priorities of rightto use the public waters of the state and determine the same. The method ofdetermining the priority and amount of appropriation shall be fixed by thedepartment.(2)(a) The departmentis authorized to administer any riparian water right that has been validatedand recognized in a court order from a court of lawful jurisdiction in thestate.(b)The only surface water appropriations that may be closed for a riparian waterright are appropriations held by persons who were parties to the lawsuit validatingthe riparian water right or appropriations with a priority date subsequentto the date of the court order. SourceLaws 1919, c. 190, tit. VII, art. V, div. 2, § 7, p. 835; C.S.1922, § 8426; C.S.1929, § 81-6307; R.S.1943, § 46-226; Laws 2000, LB 900, § 95; Laws 2009, LB184, § 1.AnnotationsThe 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).