Nebraska LB 48: Change provisions relating to sufficient cause for nonuse of a water appropriation

Bill Text

LEGISLATIVE BILL 48
Approved by the Governor March 21, 2019

Introduced by Stinner, 48.

A BILL FOR AN ACT relating to water; to amend section 46-229.04, Reissue
Revised Statutes of Nebraska; to change provisions relating to a finding
of sufficient cause for nonuse of a water appropriation; and to repeal the
original section.
Be it enacted by the people of the State of Nebraska,
Section 1. Section 46-229.04, Reissue Revised Statutes of Nebraska, is
amended to read:
46-229.04 (1) At a hearing held pursuant to section 46-229.03, the
verified field investigation report of an employee of the department, or such
other report or information that is relied upon by the department to reach the
preliminary determination of nonuse, shall be prima facie evidence for the
forfeiture and annulment of such water appropriation. If no person appears at
the hearing, such water appropriation or unused part thereof shall be declared
forfeited and annulled. If an interested person appears and contests the same,
the department shall hear evidence, and if it appears that such water has not
been put to a beneficial use or has ceased to be used for such purpose for more
than five consecutive years, the same shall be declared canceled and annulled
unless the department finds that (a) there has been sufficient cause for such
nonuse as provided for in subsection (2), (3), or (4) of this section or (b)
subsection (5) or (6) of this section applies.
(2) Sufficient cause for nonuse shall be deemed to exist for up to thirty
consecutive years if:
(a) Such such nonuse was caused by the unavailability of water for that
use. For a river basin, subbasin, or reach that has been designated as
overappropriated pursuant to section 46-713 or determined by the department to
be fully appropriated pursuant to section 46-714, the period of time within
which sufficient cause for nonuse because of the unavailability of water may be
deemed to exist may be extended beyond thirty years by the department upon
petition therefor by the owner of the appropriation if the department
determines that an integrated management plan being implemented in the river
basin, subbasin, or reach involved is likely to result in restoration of a
usable water supply for the appropriation; or .
(b) The land subject to the appropriation is under an acreage reserve
program or production quota or is otherwise withdrawn from use as required for
participation in any federal, state, or natural resources district program, or
such land was previously under such a program but currently is not under such a
program and there have been not more than five consecutive years of nonuse on
such land subsequent to when that land was last under such program.
(3) Sufficient cause for nonuse shall be deemed to exist indefinitely if
such nonuse was the result of one or more of the following:
(a) For any tract of land under separate ownership, the available supply
was used but on only part of the land under the appropriation because of an
inadequate water supply;
(b) The appropriation is a storage appropriation and there was an
inadequate water supply to provide the water for the storage appropriation or
less than the full amount of the storage appropriation was needed to keep the
reservoir full; or
(c) The appropriation is a storage-use appropriation and there was an
inadequate water supply to provide the water for the appropriation or use of
the storage water was unnecessary because of climatic conditions.
(4) Sufficient cause for nonuse shall be deemed to exist for up to fifteen
consecutive years if such nonuse was a result of one or more of the following:
(a) Federal, state, or local laws, rules, or regulations temporarily
prevented or restricted such use;
(b) Use of the water was unnecessary because of climatic conditions;
(c) Circumstances were such that a prudent person, following the
principles of good husbandry, would not have been expected to use the water;
(d) The works, diversions, or other facilities essential to use the water
were destroyed by a cause not within the control of the owner of the
appropriation and good faith efforts to repair or replace the works,
diversions, or facilities have been and are being made;
(e) The owner of the appropriation was in active involuntary service in
the armed forces of the United States or was in active voluntary service during
a time of crisis; or
(f) Legal proceedings prevented or restricted use of the water. ; or
(g) The land subject to the appropriation is under an acreage reserve
program or production quota or is otherwise withdrawn from use as required for
participation in any federal or state program or such land previously was under
such a program but currently is not under such a program and there have been
not more than five consecutive years of nonuse on that land since that land was
last under that program.
The department may specify by rule and regulation other circumstances that
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shall be deemed to constitute suff