46-714 River basin, subbasin, or reach; stay on new appropriations; notifications required; hearing; natural resources district; duties; status change; department; natural resources district; duties.
46-714. River basin, subbasin,or reach; stay on new appropriations; notifications required; hearing; naturalresources district; duties;status change; department; natural resources district; duties.(1) Whenever the Department of Natural Resources makes a preliminarydetermination that a river basin, subbasin, or reach not previously designatedas overappropriated and not previously determined to be fully appropriatedhas become fully appropriated, the department shall place an immediate stayon the issuance of any new natural-flow, storage, or storage-use appropriationsin such river basin, subbasin, or reach. The department shall also provideprompt notice of such preliminary determination to all licensed water wellcontractors in the state and to each natural resources district that encompassesany of the geographic area involved. Such notice to natural resources districtsshall be by certified mail. The notice shall be addressed to the manager ofthe natural resources district or his or her designee and shall include thesignature of the Director of Natural Resources. Immediately upon receipt ofsuch notice by the natural resources district, there shall be a stay on issuanceof water well construction permits in the geographic area preliminarily determinedby the department to include hydrologically connected surface water and groundwater in such river basin, subbasin, or reach. The department shall also notifythe public of the preliminary determination that the river basin, subbasin,or reach is fully appropriated and of the affected geographic area. Such noticeshall be provided by publication once each week for three consecutive weeksin at least one newspaper of statewide circulation and in such other newspaperor newspapers as are deemed appropriate by the department to provide generalcirculation in the river basin, subbasin, or reach.(2) If the department preliminarily determines a river basin,subbasin, or reach to be fully appropriated and has identified the existenceof hydrologically connected surface water and ground water in such river basin,subbasin, or reach, stays shall also be imposed:(a) On the construction of any new water well in the areacovered by the determination unless a permit with conditions imposed by thenatural resources district has been issued prior to the determination. Suchconditions shall meet the objectives of subsection (4) ofsection 46-715 and may include, but are not limited to, conditions in accordancewith subsection (6) of section 46-739. Any well constructed pursuant to suchpermit shall be completed in accordance with section 46-738; and(b) On the use of an existing water well or an existing surfacewater appropriation in the affected area to increase the number of acres historicallyirrigated.Such additional stays shall begin ten days after the firstpublication, in a newspaper of statewide circulation, of the notice of thepreliminary determination that the river basin, subbasin, or reach is fullyappropriated.(3) Exceptions to the stays imposed pursuant to subsection(1), (2), (8), or (9) of this sectionshall exist for (a) test holes, (b) dewatering wells with an intended useof one year or less, (c) monitoring wells, (d) wells constructed pursuantto a ground water remediation plan under the Environmental Protection Act,(e) water wells designed and constructed to pump fifty gallons per minuteor less, except that no two or more water wells that each pump fifty gallonsper minute or less may be connected or otherwise combined to serve a singleproject such that the collective pumping would exceed fifty gallons per minute,(f) water wells for range livestock, (g) new surface water uses or water wellsthat are necessary to alleviate an emergency situation involving the provisionof water for human consumption or public health and safety, (h) water wellsdefined by the applicable natural resources district as replacement waterwells, but the consumptive use of any such replacement water well can be nogreater than the historic consumptive use of the water well it is to replaceor, if applicable, the historic consumptive use of the surface water use itis to replace, (i) new surface water uses and water wells to which a rightor permit is transferred in accordance with state law, but the consumptiveuse of any such new use can be no greater than the historic consumptive useof the surface water use or water well from which the right or permit is beingtransferred, (j) water wells and increases in ground water irrigated acresfor which a variance is granted by the applicable natural resources districtfor good cause shown, (k) subject to any conditions imposed by the applicablenatural resources district, to the extent permitted by the applicable naturalresources district, increases in ground water irrigated acres that resultfrom the use of water wells that were permitted prior to the effective dateof the determination made in subsection (1) of this section and completedin accordance with section 46-738 but were not used for irrigation prior tothat effective date, (l) to the extent permitted by the applicable naturalresources district, increases in ground water irrigated acres that resultfrom the use of water wells that are constructed after the effective dateof the stay in accordance with a permit granted by that natural resourcesdistrict prior to the effective date of the stay, (m) surface water uses forwhich temporary public-use construction permits are issued pursuant to subsection(8) of section 46-233, (n) surface water uses and increases in surface waterirrigated acres for which a variance is granted by the department for goodcause shown, and (o) water wells for which permits have been approved by theDepartment of Natural Resources pursuant to the Municipal and Rural DomesticGround Water Transfers Permit Act prior to the effective date of the stay.(4) Except as otherwise provided in this section, any stayimposed pursuant to subsections (1) and (2) of this section shall remain ineffect for the affected river basin, subbasin, or reach until the departmenthas made a final determination regarding whether the river basin, subbasin,or reach is fully appropriated and, if the department's final determinationis that the river basin, subbasin, or reach is fully appropriated, shall remainin effect as provided in subsection (11) of this section. Withinthe time period between the dates of the preliminary and final determinations,the department and the affected natural resources districts shall consultwith any irrigation district, reclamation district, public power and irrigationdistrict, mutual irrigation company, canal company, or municipality that relieson water from the affected river basin, subbasin, or reach and with otherwater users and stakeholders as deemed appropriate by the department or thenatural resources districts. The department shall also hold one or more publichearings not more than ninety days after the first publication of the noticerequired by subsection (1) of this section. Notice of the hearings shall beprovided in the same manner as the notice required by such subsection. Anyinterested person may appear at such hearing and present written or oral testimonyand evidence concerning the appropriation status of the river basin, subbasin,or reach, the department's preliminary conclusions about the extent of thearea within which the surface water and ground water supplies for the riverbasin, subbasin, or reach are determined to be hydrologically connected, andwhether the stays on new uses should be terminated.(5) Within thirty days after the final hearing under subsection(4) of this section, the department shall notify the appropriate natural resourcesdistricts of the department's final determination with respect to the appropriationstatus of the river basin, subbasin, or reach. If the final determinationis that the river basin, subbasin, or reach is fully appropriated, the department,at the same time, shall (a) decide whether to continue or to terminate thestays on new surface water uses and on increases in the number of surfacewater irrigated acres and (b) designate the geographic area within which thedepartment considers surface water and ground water to be hydrologically connectedin the river basin, subbasin, or reach and describe the methods and criteriaused in making that determination. The department shall provide notice ofits decision to continue or terminate the stays in the same manner as thenotice required by subsection (1) of this section.(6) Within ninety days after a final determinationby the department that a river basin, subbasin, or reach is fully appropriated,an affected natural resources district may hold one or more public hearingson the question of whether the stays on the issuance of new water well permits,on the construction of new water wells, or on increases in ground water irrigatedacres should be terminated. Notice of the hearings shall be published as providedin section 46-743.(7) Within forty-five daysafter a natural resources district's final hearing pursuant to subsection (6) of this section, the natural resources districtshall decide (a) whether to terminate the stay on new water wells in all orpart of the natural resources district subject to the stay and (b) whetherto terminate the stay on increases in ground water irrigated acres. If thenatural resources district decides not to terminate the stay on new waterwells in any geographic area, it shall also decide whether to exempt fromsuch stay the construction of water wells for which permits were issued priorto the issuance of the stay but for which construction had not begun priorto issuance of the stay. If construction of water wells for which permitswere issued prior to the stay is allowed, all permits that were valid whenthe stay went into effect shall be extended by a time period equal to thelength of the stay.(8) Whenever the departmentdesignates a river basin, subbasin, or reach as overappropriated, each previouslydeclared moratorium on the issuance of new surface water appropriations inthe river basin, subbasin, or reach shall continue in effect. The departmentshall also provide prompt notice of such designation to all licensed waterwell contractors in the state and to each natural resources district thatencompasses any of the geographic area involved. Immediately upon receiptof such notice by a natural resources district, there shall be a stay on theissuance of new water well construction permits in any portion of such naturalresources district that is within the hydrologically connected area designatedby the department. The department shall also notify the public of its designationof such river basin, subbasin, or reach as overappropriated and of the geographicarea involved in such designation. Such notice shall be published once eachweek for three consecutive weeks in at least one newspaper of statewide circulationand in such other newspapers as are deemed appropriate by the department toprovide general notice in the river basin, subbasin, or reach.(9) Beginning ten days afterthe first publication of notice under subsection (8) ofthis section in a newspaper of statewide circulation, there shall also bestays (a) on the construction of any new water well in the hydrologicallyconnected area if such construction has not commenced prior to such date andif no permit for construction of the water well has been issued previouslyby either the department or the natural resources district, (b) on the useof an existing water well in the hydrologically connected area to increasethe number of acres historically irrigated, and (c) on the use of an existingsurface water appropriation to increase the number of acres historically irrigatedin the affected area.(10) Within ninety days aftera designation by the department of a river basin, subbasin, or reach as overappropriated,a natural resources district that encompasses any of the hydrologically connectedarea designated by the department may hold one or more public hearings onthe question of whether to terminate the stays on (a) the construction ofnew water wells within all or part of its portion of the hydrologically connectedarea, (b) the issuance of new water well construction permits in such area,or (c) the increase in ground water irrigated acres in such area. Notice ofany hearing for such purpose shall be provided pursuant to section 46-743.Prior to the scheduling of a natural resources district hearing on the questionof whether to terminate any such stay, the department and the affected naturalresources district shall consult with any irrigation district, reclamationdistrict, public power and irrigation district, mutual irrigation company,canal company, or municipality that relies on water from the affected riverbasin, subbasin, or reach and with other water users and stakeholders as deemedappropriate by the department or the natural resources district.(11) Any stay issued pursuantto this section shall remain in effect until (a) the stay has been terminatedpursuant to subsection (5), (7),or (10) of this section, (b) an integrated management plan forthe affected river basin, subbasin, or reach has been adopted by the departmentand the affected natural resources districts and has taken effect, (c) anintegrated management plan for the affected river basin, subbasin, or reachhas been adopted by the Interrelated Water Review Board and has taken effect,(d) the department has completed a reevaluation pursuant to subsection (2)of section 46-713 and has determined that the affected river basin, subbasin,or reach is not fully appropriated or overappropriated, or (e) the stay expirespursuant to this subsection. Such stay may be imposed initially for not morethan three years following the department's designation of the river basin,subbasin, or reach as overappropriated or the department's final determinationthat a river basin, subbasin, or reach is fully appropriated and may be extendedthereafter on an annual basis by agreement of the department and the affectednatural resources district for not more than two additional years if necessaryto allow the development, adoption, and implementation of an integrated managementplan pursuant to sections 46-715 to 46-719.(12)(a) For purposesof this subsection, (i) a status change occurs when a preliminary or finaldetermination that a river basin, subbasin, or reach is fully appropriatedis reversed by the department or by judicial determination and such riverbasin, subbasin, or reach is determined not to be fully appropriated and (ii)the hydrologically connected area means the geographic area within which thedepartment considers surface water and ground water in such river basin, subbasin,or reach to be hydrologically connected.(b) If a status change occurs, any stays previouslyin force by the department or affected natural resources districts shall remainin force until the stays imposed under this subsection are in place and thedepartment shall place an immediate stay on the issuance of any new natural-flow,storage, or storage-use appropriations in the river basin, subbasin, or reach.The department shall also provide prompt notice of the status change in accordancewith subsection (1) of this section. Immediately upon receipt of the noticeby the affected natural resources district, there shall be stays imposed asset forth in subsections (1) and (2) of this section, subject to the exceptionsset forth in subsection (3) of this section. The stays imposed pursuant tothis subsection shall remain in effect within each affected natural resourcesdistrict until such district adopts rules and regulations in accordance withsubdivision (c), (d), or (e) of this subsection.(c) Upon receipt of notice of astatus change, each affected natural resources district shall adopt rulesand regulations within one hundred twenty days after receipt of such noticefor the prioritization and granting of water well permits within the hydrologicallyconnected area for the four-year period following the status change. Nothingin this subsection shall be construed to supersede the authority providedto natural resources districts under subsection (2) of section 46-707 andsubdivisions (1)(f) and (1)(m) of section 46-739.(d) The rules and regulations adoptedby each affected natural resources district in accordance with subdivision(c) of this subsection shall (i) allow a limited number of total new groundwater irrigated acres annually, (ii) be created with the purpose of maintainingthe status of not fully appropriated based on the most recent basin determination,(iii) be for a term of not less than four years, and (iv) limit the numberof new permits so that total new ground water irrigated acres do not exceedthe number set in the rules and regulations. The department shall approvethe proposed new number of ground water irrigated acres within sixty daysafter approval by the natural resources district if such district meets theconditions set forth in subdivision (d)(ii) of this subsection, based on themost recent basin determination.(e) If the proposed new number of acres is not approvedby the department within the applicable time period as provided in subdivision(d) of this subsection, the affected natural resources districts shall adoptrules and regulations that allow water well permits to be issued that willresult in no more than two thousand five hundred irrigated acres or that willresult in an increase of not more than twenty percent of all historicallyirrigated acres within the hydrologically connected area of each natural resourcesdistrict within the affected river basin, subbasin, or reach, whichever isless, for each calendar year of the four-year period following the date ofthe determination described in this subsection. Each affected natural resourcesdistrict may, after the initial four-year period has expired, annually determinewhether water well permit limitations should continue and may enforce suchlimitations.(f)During the four-year period following the status change, the department shallensure that any new appropriation granted will not cause the basin, subbasin,or reach to be fully appropriated based on the most recent basin determination.The department, pursuant to its rules and regulations, shall not issue newnatural flow surface water appropriations for irrigation, within the riverbasin, subbasin, or reach affected by the status change, that will resultin a net increase of more than eight hundred thirty-four irrigated acres ineach natural resources district during each calendar year of the four-yearperiod following the date of the determination described in this subsection. SourceLaws 2004, LB 962, § 54; Laws 2006, LB 1226, § 24; Laws 2009, LB54, § 2; Laws 2009, LB483, § 4. Cross ReferencesEnvironmental Protection Act, see section 81-1532.Municipal and Rural Domestic Ground Water Transfers Permit Act, see section 46-650.