46-720 Proceedings under prior law; transitional provisions.
46-720. Proceedings underprior law; transitional provisions.(1) The Legislaturefinds that, prior to July 16, 2004, actions were taken by the Department ofNatural Resources and by one or more natural resources districts pursuantto section 46-656.28, as such section existed immediately prior to such date,for the purpose of addressing circumstances that are, after such date, tobe addressed in accordance with sections 46-713 to 46-719. It is the intentof the Legislature that actions taken pursuant to section 46-656.28, as suchsection existed immediately prior to July 16, 2004, should not be negatedand that transition from the authorities and responsibilities granted by suchsection to those granted by sections 46-713 to 46-719 should occur in as efficienta manner as possible. Such transition shall be therefor governed by subsections(2) through (5) of this section, and all references in such subsections tosection 46-656.28 shall be construed to mean section 46-656.28 as such sectionexisted immediately prior to July 16, 2004.(2) If, prior to July 16, 2004, (a) a natural resources districtrequested pursuant to subsection (1) of section 46-656.28 that affected appropriators,affected surface water project sponsors, and the department consult and thatstudies and a hearing be held but (b) the Director of Natural Resources hasnot made a preliminary determination relative to that request pursuant tosubsection (2) of section 46-656.28, no further action on the district's requestshall be required of the department. If under the same circumstances a temporarysuspension in the drilling of certain water wells has been imposed by thedistrict pursuant to subsection (16) of section 46-656.28 and remains in effectimmediately prior to July 16, 2004, such temporary suspension shall remainin effect for thirty days after the department issues its first annual reportunder section 46-713, except that (i) such temporary suspension shall notapply to water wells for which a permit has been obtained pursuant to theMunicipal and Rural Domestic Ground Water Transfers Permit Act and (ii) tothe extent any such temporary suspension is in effect for all or part of ahydrologically connected area for a river basin, subbasin, or reach designatedas overappropriated by the department, such temporary suspension shall remainin effect only until it is superseded by the stays imposed pursuant to subsections (8) and (9) of section 46-714. To the extent thatany such temporary suspension applies to a geographic area preliminarily consideredby the department to have ground water hydrologically connected to the surfacewater of a fully appropriated river basin, subbasin, or reach, such temporarysuspension shall be superseded by the stays imposed pursuant to subsections(1) and (2) of section 46-714.(3)(a) If prior to July 16, 2004, (i) the director has madea preliminary determination pursuant to subsection (2) of section 46-656.28that there is reason to believe that the use of hydrologically connected groundwater and surface water in a specific geographic area is contributing to oris in the reasonably foreseeable future likely to contribute to any conflict,dispute, or difficulty listed in such subsection, (ii) the director has notmade a determination pursuant to subsection (4) of section 46-656.28 thata joint action plan should not be prepared, and (iii) preparation of a jointaction plan pursuant to subsections (5) through (9) of such section has notbeen completed, the geographic area involved shall become subject to sections 46-713 to 46-719 on July 16, 2004, and the department need not evaluate suchgeographic area in its first annual report issued pursuant to section 46-713.(b) For purposes of this subsection and section 46-714 andexcept as otherwise provided in this section, (i) July 16, 2004, shall resultin the imposition in any geographic area subject to this subsection of thestays required by subsections (1) and (2) of section 46-714, (ii) such staysshall be imposed in the manner required by such section, and (iii) July 16,2004, shall be treated as if it were the date of a departmental preliminarydetermination pursuant to section 46-713 that such area is a geographic areawithin which ground water and surface water of a fully appropriated riverbasin, subbasin, or reach are hydrologically connected. Notwithstanding theother provisions of this subsection, if a temporary suspension in the drillingof certain new water wells has previously been imposed by the affected naturalresources district, (A) the stays on construction of new water wells and onthe increase in ground water irrigated acres shall be limited in geographicextent to only that part of the affected area within which the temporary suspensionwas in effect unless the director determines that inclusion of additionalarea is necessary because ground water and surface water are hydrologicallyconnected in such additional area and (B) the stays on construction of certainnew water wells shall not apply to a water well constructed in accordancewith the terms of a water well construction permit approved by the districtprior to July 16, 2004, unless such well was subject to the district's temporarysuspension. If, prior to July 16, 2004, the director has held a hearing ona report issued pursuant to subsection (3) of section 46-656.28 but has notyet determined whether a joint action plan should be prepared, no departmentalhearing shall be required pursuant to subsection (4) of section 46-714 beforea final determination is made about whether the river basin, subbasin, orreach involved is fully appropriated. If, prior to July 16, 2004, the directorhas determined pursuant to subsection (4) of section 46-656.28 that a jointaction plan should be prepared, such determination shall have the same effectas a final departmental determination pursuant to subsection (5) of section 46-714 that the affected river basin, subbasin, or reach is fully appropriatedand no separate determination to that effect shall be required. If, afterJuly 16, 2004, the department determines that all or part of the area subjectto this subsection is in an overappropriated river basin, subbasin, or reach,that portion of the area shall thereafter be subject to the provisions ofthe Nebraska Ground Water Management and Protection Act applicable to an overappropriatedriver basin, subbasin, or reach and stays that have previously taken effectin accordance with this subsection shall continue in effect as stays for anoverappropriated river basin, subbasin, or reach without additional actionor publication of notice by the department. Any temporary suspension in thedrilling of certain water wells that has been imposed in the geographic areainvolved by a natural resources district pursuant to subsection (16) of section 46-656.28 prior to July 16, 2004, shall remain in effect until supersededby the stays imposed pursuant to subsections (1) and (2) of section 46-714.(4) If, prior to July 16, 2004, preparation of a joint actionplan has been completed pursuant to subsections (5) through (9) of section 46-656.28 but the plan has not yet been adopted pursuant to subsection (11)of such section, the department need not evaluate the affected geographicarea in its first annual report issued pursuant to section 46-713. The departmentand the affected natural resources district shall review the completed jointaction plan for its compliance with sections 46-715 to 46-717. If the jointaction plan is determined to be in compliance with sections 46-715 to 46-717or if agreement is reached on the revisions necessary to bring it into suchcompliance, the department and the district shall adopt the plan and implementthe controls as provided in section 46-718. If the joint action plan is determinednot to be in compliance with sections 46-715 to 46-717 and agreement on theproposed plan or the proposed controls cannot be reached pursuant to section 46-718, section 46-719 shall apply. Except to the extent that any portionof the affected area is designated as all or part of an overappropriated riverbasin, subbasin, or reach, any temporary suspension in the drilling of certainwater wells imposed in the affected geographic area by a natural resourcesdistrict pursuant to subsection (16) of section 46-656.28 shall remain ineffect until (a) the department and the affected district have jointly decidedto implement the plan, with or without modifications, and controls have beenadopted and taken effect or (b) the Interrelated Water Review Board, pursuantto section 46-719, has adopted an integrated management plan for the affectedriver basin, subbasin, or reach and the controls adopted by the board havetaken effect. To the extent that any portion of the affected area is designatedas all or part of an overappropriated river basin, subbasin, or reach, anytemporary suspension in the drilling of water wells shall be superseded bythe stays imposed pursuant to subsections (8)and (9) ofsection 46-714.(5) If, before July 16, 2004, a joint action plan has beenadopted and implemented pursuant to subsections (10) through (12) of section 46-656.28 and is in effect immediately prior to such date, the departmentneed not evaluate the geographic area subject to the plan in the department'sfirst annual report issued pursuant to section 46-713. For purposes of theNebraska Ground Water Management and Protection Act, (a) the plan adoptedshall be considered an integrated management plan adopted pursuant to section 46-718, (b) the management area designated shall be considered an integratedmanagement area or subarea designated pursuant to section 46-718, and (c)the controls adopted shall be considered controls adopted pursuant to section 46-718 and shall remain in effect until amended or repealed pursuant to section 46-718 or 46-719. SourceLaws 2004, LB 962, § 60; Laws 2009, LB483, § 5. Cross ReferencesMunicipal and Rural Domestic Ground Water Transfers Permit Act, see section 46-650.