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Water Rights

CHAPTER 46-2A
ADMINISTRATIVE PROCEDURE FOR APPROPRIATION OF WATER


Section
46-2A-1. Application of provisions of chapter.
46-2A-2. Recommendation of chief engineer on application - Schedule of hearing.
46-2A-3. Recommendation of chief engineer on application - Mailing to applicant - Duties of applicant.
46-2A-4. Publication of application and recommendation of chief engineer - Time for publication and contents of notice.
46-2A-5. Postponement of hearing on application - Time for notice.
46-2A-6. Service and filing of pleadings, petitions and motions.
46-2A-7. Approval or disapproval of permit, license, or amendment--Applications for groundwater source determined to be fully appropriated.
46-2A-7.1. Notice of determination that groundwater source fully appropriated--Applications for future consideration.
46-2A-7.2. Date of receipt--Incomplete application--One irrigation permit application per parcel.
46-2A-7.3. Applications submitted prior to board decision that aquifer is fully appropriated or prior to July 1, 2014.
46-2A-7.4. Priority list for future unappropriated water.
46-2A-7.5. Public hearing to review groundwater source--Notice--Retention of eligibility by applicant.
46-2A-7.6. Unappropriated water to be available to held applications based on priority.
46-2A-7.7. Transfer of water permit application.
46-2A-8. Time for completion of construction and use of water - Application for lesser amount of water or variance in periods of use.
46-2A-8.1. Reinstatement of permit after expiration of time for construction - Application - Priority.
46-2A-9. Appropriation of water - When permit may be issued.
46-2A-10. Reservation for future use - When approval allowed.
46-2A-11. Flood control works - When permit may be issued.
46-2A-12. Amendment of permit or license - When granted.
46-2A-13. Well driller or well pump installer license -- Issuance by chief engineer -- Procedure on denial or deferral of decision.
46-2A-14. Application and permit refer to one water use system - Location to be stated.
46-2A-15. Date of receipt of application recorded - Correction of application.
46-2A-16. Validation of vested water right claim - Notice.
46-2A-17. Hearing to oppose validation - Notice.
46-2A-18. Abandonment of validated vested right.
46-2A-19. Adjustment and validation of certain interstate water right claims.
46-2A-20. Term limitation on water withdrawal from Madison formation in certain counties.
46-2A-21. Deletion of term limitation under certain conditions - Cancellation or amendment of permit.
46-2A-22. Correction of errors in published notice of vested right claims - Contents - Hearing only on filing of petition.
46-2A-23. Publication of notice to determine opposition to an application or recommendation of the chief engineer - petition to contest the recommendation or to oppose an application.

46-2A-1. Application of provisions of chapter. The provisions of this chapter apply to any application for:

(1) A permit to appropriate water;

(2) An amendment of an existing permit or license, including change in use of water or change in place of use or diversion point of water;

(3) A reservation for future use;

(4) A permit for flood control;

(5) A well driller license;

(5A) A well pump installer license;

(6) Reinstatement of a permit;

(7) A vested right claim; and

(8) Other cases as may be specified by statute.

46-2A-2. Recommendation of chief engineer on application - Schedule of hearing. Within sixty days of receipt of a completed application, the chief engineer shall recommend in writing approval, disapproval or deferral until further notice and shall schedule the application for hearing by the water management board. The recommendation shall include any terms, conditions, restrictions, qualifications, quantifications or limitations on perpetuity which are consistent with this chapter, necessary to protect the public interest and related to matters within the jurisdiction of the chief engineer or the board.

46-2A-3. Recommendation of chief engineer on application - Mailing to applicant - Duties of applicant. In all cases except applications for a well driller license or a well pump installer license, the chief engineer shall mail a copy of the recommendation to the applicant and, if the recommendation is to approve or defer the application, a copy of the newspaper notice to be published and the times when it is to be published. If the recommendation is to deny the application, the applicant within twenty days of the date the recommendation was mailed shall state in writing whether the applicant intends to oppose the recommendation at a hearing before the Water Management Board. Failure to submit a statement of intent to oppose a recommendation to deny to the chief engineer constitutes a withdrawal of the application. If the applicant chooses to oppose the recommendation, the chief engineer shall provide the applicant notice of the hearing to be published pursuant to the provisions of § 46-2A-4. Any cost of publication shall be borne by the applicant.

46-2A-4. Publication of application and recommendation of chief engineer - Time for publication and contents of notice. Except in the case of an application for a well driller license or a well pump installer license, if a recommendation is to approve or defer an application or if an applicant has filed a petition to oppose a recommendation to deny an application, the applicant shall publish notice of the application and recommendation at least once in at least one official newspaper in each county where the water will be diverted or used or where project works will be located. The official newspaper shall be selected by the chief engineer and shall be a newspaper designated as an official newspaper pursuant to § 7-18-3. If the official newspaper is a weekly newspaper, then the notice shall also be published at least once in a daily newspaper. The daily newspaper selected by the chief engineer shall be located as near as possible to the location where the water will be diverted or used. Public notice of the application shall also be posted on the department's website until final action is taken on the application. The publication shall be at least twenty days before the first day of the Water Management Board meeting at which the matter is noticed to be heard. No application for a permit, license, or amendment may be considered and approved by the board until proof of all required publications has been filed with the chief engineer. The notice, which shall be provided by the chief engineer to the applicable newspapers, shall include the following, as applicable:

(1) The name and address of the applicant;

(2) A brief description of the project, including, where applicable, the proposed place or places of use of the water or facilities, including the point of diversion, the amount of water to be used and the purpose for which the water or facility is to be used;

(3) A brief statement describing the recommendation and the reasons for the recommendation;

(4) A statement that any interested person who intends to participate in the hearing shall file a petition to oppose or support the application and that the petition shall be filed with the chief engineer and applicant at least ten days before the published date for hearing;

(5) A statement that a petition to oppose or support an application may be informal, but shall be in writing and shall contain the following:

(a) A statement describing the petitioner's interest in the application;

(b) The reasons for the petitioner's opposition to or support for the application; and

(c) The signature and mailing address of the petitioner or the petitioner's legal counsel;

(6) A statement telling where copies of the recommendation, application or other information may be obtained;

(7) The time when and the place where the application will be considered by the board;

(8) A statement that the recommendation of the chief engineer is not final or binding upon the board and is subject to the approval of the board after it reaches a conclusion based on facts at the public hearing;

(9) A statement that the time of hearing will be automatically extended for at least twenty days upon written request of the applicant or any person who has filed a petition to oppose or support the application and a statement that any such request by the applicant or person filing a petition shall be made at least ten days before the published date for hearing; and

(10) A statement that if the applicant does not contest the recommendation of the chief engineer and no petition to oppose the application is received, the chief engineer shall act on the application pursuant to the chief engineer's recommendation and no hearing may be held before the board, unless the chief engineer makes a finding that an application, even if uncontested, presents important issues of public policy or public interest that should be heard by the board.

46-2A-5. Postponement of hearing on application - Time for notice. The applicant or any person who has filed a petition to oppose or support an application, may submit a written notice to the chief engineer requesting a postponement of the date set for hearing on the application. Upon receipt of the written notice, the chief engineer shall cancel the original hearing on the application and reschedule the application for hearing by the water management board not less than twenty days after the published date for hearing. The notice shall be filed at least ten days before the published date for hearing.

46-2A-6. Service and filing of pleadings, petitions and motions. The originals of all pleadings, including petitions to contest, petitions to intervene and motions, shall be filed with the chief engineer and served upon other parties, either personally or by mail. The chief engineer shall provide copies to all water management board members. Service and filing by mail shall be deemed complete upon mailing.

46-2A-7. Approval or disapproval of permit, license, or amendment--Applications for groundwater source determined to be fully appropriated. If the Water Management Board determines, based upon the evidence presented at the hearing, that the applicable requirements for the permit, license, or amendment have been met, it shall approve the permit, license, or amendment. If the board determines that the requirements have not been met or that the evidence is insufficient to support a determination, it shall disapprove the application or defer it for further study. The chief engineer shall hold an application submitted on or after July 1, 2014, to appropriate water from a groundwater source determined to be fully appropriated by the board pursuant to § 46-6-3.1 only as provided in §§ 46-2A-7.1 to 46-2A-7.7, inclusive.

46-2A-7.1. Notice of determination that groundwater source fully appropriated--Applications for future consideration. If the board determines a groundwater source to be fully appropriated pursuant to § 46-6-3.1, the chief engineer shall publish a notice within thirty days of the board's final decision at least once in at least one official newspaper in each county where the groundwater source is located. For any groundwater source determined to be fully appropriated by the board prior to July 1, 2014, notice shall also be published as provided by this section. If the official newspaper is a weekly newspaper, the notice shall also be published at least once in a daily newspaper serving the general area where the groundwater source is located and posted on the department's website until the thirty day application period is completed. The public notice shall describe the decision of the board and provide notice of a thirty day application period during which the chief engineer shall accept and hold for future consideration applications to appropriate water from the groundwater source specified in the public notice.

46-2A-7.2. Date of receipt--Incomplete application--One irrigation permit application per parcel. The date of receipt affixed to any application submitted pursuant to § 46-2A-7.1 shall be the date of the thirtieth day of the thirty day application period. An incomplete application will be returned to the applicant with notification of the deficiencies. The applicant has thirty days from the date the application is returned to complete and resubmit the application to retain the common priority date assigned to all of the applications. Any application received after the date of the board's decision and prior to the commencement of the thirty day application period shall assume the same priority date assigned to applications submitted during the thirty day application period. The chief engineer shall also accept and hold any application submitted after the thirty day application period but such an application shall take a priority date as of the date of receipt of the application. No more than one irrigation permit application may be accepted for the same acreage.

46-2A-7.3. Applications submitted prior to board decision that aquifer is fully appropriated or prior to July 1, 2014. Any application submitted prior to the board's decision that an aquifer is fully appropriated pursuant to § 46-6-3.1 or prior to July 1, 2014, is not eligible to be included in the process established by §§ 46-2A-7.1 to 46-2A-7.7, inclusive, and shall be considered by the board for final action. The board may approve, deny, or defer those applications for further study.

46-2A-7.4. Priority list for future unappropriated water. From the list of complete applications submitted pursuant to § 46-2A-7.1 and assigned a common priority date, the board shall create a priority list using a random selection process to be determined by the board. The priority list determines the order of eligibility for any unappropriated water the board may determine is available at a future date. Establishing the priority of each application by the board shall be scheduled no later than the second regularly scheduled board meeting following expiration of the thirty day application period.

46-2A-7.5. Public hearing to review groundwater source--Notice--Retention of eligibility by applicant. For any groundwater source determined to be fully appropriated pursuant to § 46-6-3.1, the board shall hold a public hearing to review the groundwater source, all permits appropriating water from that source, and all held applications at least once every five years to determine whether unappropriated water is available. The chief engineer shall publish notice of the hearing at least once in at least one official newspaper in each county where the groundwater source is located. If the official newspaper is a weekly newspaper, the notice shall also be published at least once in a daily newspaper serving the general area where the groundwater source is located and posted on the department's website until the public hearing is completed. The chief engineer shall also provide notice of the five-year review and hearing to the address included in each applicant's file. Each applicant shall notify the chief engineer in writing within thirty days of receipt of the notice whether the applicant desires to retain eligibility to appropriate any water that the board may determine is available through its review of the aquifer. A fee equal to ten percent of their original application fee shall also be remitted to the chief engineer to retain eligibility. Failure of the applicant to notify the chief engineer in writing or remit the fee constitutes withdrawal of the held application.

46-2A-7.6. Unappropriated water to be available to held applications based on priority. If the board determines that unappropriated water has become available from a fully appropriated groundwater source during the five-year review under § 46-2A-7.5, the board shall make the unappropriated water available to the applications being held by the chief engineer based on the priority established in §§ 46-2A-7.2 and 46-2A-7.4. The chief engineer shall process held applications in accordance with the notice provisions pursuant to chapter 46-2A until such time the board determines the groundwater source to again be fully appropriated in accordance with § 46-6-3.1. Any remaining applications shall continue to be held by the chief engineer for future five-year reviews by the board. If there is remaining unappropriated water available after processing all held applications, the remaining unappropriated water is subject to general appropriation as provided by law.

46-2A-7.7. Transfer of water permit application. No water permit application approved by the board pursuant to § 46-2A-7.6 may be transferred until the water has been placed to beneficial use as specified in the permit. For a permit to irrigate, no transfer of water or acreage may be approved for an amount of water or acres greater than the amount developed at the original site.

46-2A-8. Time for completion of construction and use of water - Application for lesser amount of water or variance in periods of use. Any construction necessary to put the water to beneficial use shall be completed within five years of approval of the permit and the water shall be put to beneficial use within an additional four years. The water management board may, in its discretion, approve any application for a lesser amount of water or may vary the periods of annual use and the permit to appropriate water shall be regarded as limited accordingly.

46-2A-8.1. Reinstatement of permit after expiration of time for construction - Application - Priority. The Water Management Board may reinstate any water permit with a priority date after March 31, 1977, if unappropriated water is available and construction necessary to put water to beneficial use was not completed pursuant to 46-2A-8 or 46-5-26. Any application under this section shall be made within three years of the expiration of the original construction period pursuant to chapter 46-2A. The priority date for the application to reinstate a permit shall be the date the application to reinstate is filed.

46-2A-9. Appropriation of water - When permit may be issued. A permit to appropriate water may be issued only if there is reasonable probability that there is unappropriated water available for the applicant's proposed use, that the proposed diversion can be developed without unlawful impairment of existing rights and that the proposed use is a beneficial use and in the public interest.

46-2A-10. Reservation for future use - When approval allowed. A reservation for a future use may be approved only if there is a reasonable probability that unappropriated water is available for appropriation, that the quantity of water reserved will be needed by the entity and that the proposed use will be a beneficial use and in the public interest.

46-2A-11. Flood control works - When permit may be issued. A permit for flood control works may be issued only if the project will reduce the damage from flooding or erosion in the area proposed to be benefited, the project will not increase the likelihood or the severity of flood damages in areas other than the project area or the area proposed to be benefited, the project will not endanger human life or property and the project will not impair existing water rights, except to the extent that such rights are extinguished or compensated through agreement or exercise of the power of eminent domain.

46-2A-12. Amendment of permit or license - When granted. An amendment of an existing permit or license may be granted for a change in use, a change in point of diversion or other change only if the change does not unlawfully impair existing rights and is for a beneficial use and in the public interest.

46-2A-13. Well driller or well pump installer license -- Issuance by chief engineer -- Procedure on denial or deferral of decision. In the case of an application for a well driller license or a well pump installer license, the chief engineer may issue the license. If the chief engineer's recommendation is to deny the license or to defer the decision on the license, the chief engineer shall mail a copy of the recommendation to the applicant with a statement of the reasons for the recommendation and the time and place of the hearing before the Water Management Board on the recommendation, in accordance with the provisions of chapter 1-26.

46-2A-14. Application and permit refer to one water use system - Location to be stated. Any application and permit to appropriate water shall refer to one water use system, the location of which shall be described in the application.

46-2A-15. Date of receipt of application recorded - Correction of application. The date of receipt by the chief engineer of an application for any permit, license or amendment under Title 46 shall be endorsed thereon. If the chief engineer determines that the application is defective in form or incomplete, it shall be returned to the applicant with a statement of the corrections, amendments or changes required within thirty days after its receipt. Sixty days from the date the application is returned shall be allowed for refiling. If refiled, with corrections made as required within sixty days, the application shall take priority as of the date of its original filing. Any corrected application filed after the sixty-day time allowed shall be treated in all respects as an original application received on the date of its refiling.

46-2A-16. Validation of vested water right claim - Notice. Any claim for vested rights as defined in 46-1-9 or 46-6-1 that has been accepted for filing by the chief engineer or board of water management, prior to July 1, 1986, is eligible for validation. The chief engineer shall prepare a list based on the point of diversion of these vested rights on a county-by-county basis. By July 31, 1988, the chief engineer shall cause to be published once a week for two consecutive weeks in a newspaper of general circulation in each county a notice of these vested rights in the county in which the notice is published. The notice shall include the following:

(1) The name and address of these vested right holders;

(2) The legal description of the diversion points and, if the water is used for irrigation purposes, the legal description of the land on which the water has been used;

(3) The source of water;

(4) A statement that any person who wishes to oppose validation of any such vested right shall, within ninety days of the date of the last publication, file a petition of intent to oppose the validation with the department and with the vested right holder; and

(5) A statement that any interested person may obtain a copy of the chief engineer's vested right list for other counties from the department.

A copy of each notice published in a county shall be mailed by the chief engineer by first class mail to all known water right or water permit holders in that county. No hearing may be scheduled unless a petition of intent to oppose is filed.

46-2A-17. Hearing to oppose validation - Notice. If a petition of intent to oppose the validation of a recognized vested water right claim is filed pursuant to 46-2A-16, the board of water management shall hear and determine the matter de novo. Further published notice is not necessary, but the parties shall be notified of the hearing by first class mail. If no petition opposing validation of the recognized water right claim is filed pursuant to § 46-2A-16, the board shall issue an order validating the vested right claim.

46-2A-18. Abandonment of validated vested right. Recognition or validation of a vested right under § 46-5-49 or 46-6-2 does not protect the water right from a claim of abandonment or forfeiture based upon acts occurring in whole or in part after the date of the board's recognition or validation. The entry of an order under § 46-2A-17 does not protect the water right from a claim of abandonment or forfeiture based upon acts occurring in whole or in part after the date of the original acceptance of the filing of the claim by the chief engineer or the board of water management.

46-2A-19. Adjustment and validation of certain interstate water right claims. Any person claiming to be the owner of a right to appropriate water from any source for beneficial use other than domestic uses as defined in subdivision § 46-1-6(7), on property in the state of South Dakota which was located in the state of Nebraska prior to ratification and approval of state boundary changes pursuant to § 1-2-8 shall file with the chief engineer prior to July 1, l993, any water use claim in a form and manner prescribed by the board of water management. The claim shall set forth the water source, the amount of water used, when the water was used, purpose of use, the location of the diversion works and, if the water has been used for irrigation purposes, the legal description of the land upon which the water has been used and the name of the land owner. Any water right or other document issued by the state of Nebraska concerning the claimed water use shall accompany the claim. The claim shall be signed under oath, and shall be either from the claimant's own personal knowledge or on information and belief. The hearing on the claim shall be conducted pursuant to the procedures contained in this chapter. If the claim is approved by the board of water management, the priority date assigned to the claim shall be either the date assigned to a water right granted in the state of Nebraska or the date water was originally put to beneficial use in the state of Nebraska, if no water right was granted. Failure to file a claim prior to July 1, 1993, waives any claim for appropriation of water.

46-2A-20. Term limitation on water withdrawal from Madison formation in certain counties. Notwithstanding §§ 46-1-14 and 46-2A-7, no water permit for construction of works to withdraw water from the Madison formation in Butte, Fall River, Custer, Lawrence, Meade and Pennington counties may be issued for a term of more than twenty years, unless the water management board determines, based upon the evidence presented at a hearing that:

(1) Sufficient information is available to determine whether any significant adverse hydrologic effects on the supply of water in the Madison formation would result if the proposed withdrawal were approved; and

(2) The information, whether provided by the applicant or by other means, shows that there is a reasonable probability that issuance of the proposed permit would not have a significant adverse effect on nearby Madison formation wells and springs.

46-2A-21. Deletion of term limitation under certain conditions - Cancellation or amendment of permit. At any time during the twenty-year term set forth in § 46-2A-20, or following its expiration, the board may delete the term limitation condition upon a finding that sufficient information has become available to determine:

(1) Whether the withdrawal would cause any significant adverse effects on the supply of water in the Madison formation; and

(2) Whether the withdrawal would cause any significant adverse effects on nearby Madison formation wells and springs.

At the end of the twenty-year limitation, the board may cancel a permit or amend the permit with a new term limitation of up to twenty years, if the board is unable to make a finding after notice and hearing that sufficient information is available to delete the term limitation. The priority date for any permit issued with a term limitation or amended with an additional term limitation shall be the date the original application was filed.

46-2A-22. Correction of errors in published notice of vested right claims - Contents - Hearing only on filing of petition. Any vested right claim published for validation in accordance with § 46-2A-16 may be readvertised to correct errors in the published notice pursuant to the publication time frame and comment period established by § 46-2A-4. The contents of the notice shall conform to § 46-2A-16, as applicable, and delivery of a copy of the notice to all known water right or water permit holders is not required. No hearing may be scheduled unless a petition of intent to oppose is filed.

46-2A-23. Publication of notice to determine opposition to an application or recommendation of the chief engineer - Petition to contest the recommendation or to oppose an application. Following the issuance of a recommendation to approve an application pursuant to § 46-2A-2, the chief engineer may publish, at the expense of the applicant, a notice to determine if any person opposes the application or recommendation of the chief engineer. The notice shall be published as provided for in § 46-2A-4, and shall contain the information provided for in subdivisions 46-2A-4 (1), (2), (3), (5), (6), and (10). The notice is not required to refer to a board meeting or hearing date. In addition, the notice shall include a statement that if the applicant intends to contest the recommendation, the applicant shall file a petition with the chief engineer, and any interested person who intends to oppose or support the application or recommendation shall file a petition with the chief engineer and the applicant. Any petition shall be filed within ten days of the published notice.

If no petition to contest the recommendation or to oppose an application is timely filed, the chief engineer, following receipt of proof of publication, shall act on the application consistent with his recommendation as provided by rules promulgated by the water management board pursuant to chapter 1-26 delegating authority to the chief engineer to issue uncontested permits pursuant to §§ 46-1-16 and 46-2-3.1, without hearing by the board.

If a petition to contest the recommendation or to oppose the application is timely filed, the chief engineer shall provide notice of a board hearing pursuant to § 1-26-17. The notice shall also include a statement that the recommendation of the chief engineer is not final or binding upon the board and is subject to the decision of the board based on evidence and record of the public hearing. A statement shall also be included in the notice that the applicant or any interested person who has filed a petition to oppose or support an application, may file a written notice with the chief engineer requesting postponement of the original hearing date. The written notice requesting postponement shall be filed within twenty days of the date of the notice scheduling the board hearing, but not less than ten days before the date the application is scheduled for hearing. Upon timely receipt of a written notice, the chief engineer shall cancel the original hearing and reschedule the hearing not less than twenty days after the original hearing date. Notice of hearing shall be provided by personal service or by first class mail to the applicant and parties of record.

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