In what may be good news for farmers and ranchers operating in the Lower Niobrara River Basin, the Nebraska Supreme Court reversed the Department of Natural Resources’ “fully appropriated” designation for the basin. The June 3, 2011 ruling may open doors for new well permits and possibly new surface water appropriations.
The “fully appropriated” designation generally means that the river is maxed out for uses which divert water from the river, such as wells and irrigation. In 2006 and 2007 the DNR found the river was not maxed out. However, in 2008 the DNR designated the Lower Niobrara River Basin as fully appropriated after receiving a call from the Nebraska Public Power District (NPPD). NPPD wanted the DNR to satisfy NPPD’s water rights on the river to the detriment of other users.
The Middle Niobrara Resource District (NRD), among others, brought an action claiming that the DNR failed to follow its own regulations and use the best methodology to determine whether the river was fully appropriated. The Court agreed with the NRD and specifically found that the designation was improperly influenced by the NPPD request.
Based on the Court’s decision, the DNR will have to go back to square one to determine if the Lower Niobrara River Basin is maxed out. Whether the ruling benefits those looking to dig new wells or irrigate additional land is currently unknown. However, the ruling sets a precedent that the DNR must be consistent, diligent and fair when designating rivers as “fully appropriated.”
Middle Niobrara Natural Resouces District v. Department of Natural Resources, 281 Neb. 634, 2011 Neb. LEXIS 53 (2011)