Since 1895, Nebraska has had an administrative system overseeing the orderly use of the State’s surface water resources. The Nebraska Department of Natural Resources (DNR) is the State agency authorized by Nebraska statutes to regulate surface waters. All diversions of surface water for irrigation, hydropower, industrial use, municipal use, domestic use, storage and other uses require a State permit. Recently, authority of the DNR was broadened to include instream uses for recreation; fish and wildlife; induced ground water recharge for public water suppliers; and diversions by ground water irrigation wells located within 50 feet of the bank of the channel. Each permit has certain limitations and conditions associated with it. This publication is limited to discussion of natural flow permits granted to divert water from Nebraska’s streams.
Every permit has a priority date usually based on the date the application for a permit was filed with the DNR. There are some statutory exceptions. Water distribution in Nebraska is based on “first in time is first in right.” Priority dates set the value of the right, the older (senior) the priority date, the better the right. During times of shortage, newer (junior) water rights are denied water to satisfy the needs of older water rights.
Point of Diversion
The point of diversion may be a pump location or a headgate. In either case, there is a described location given in the permit where water may be diverted from a stream. Some permits may have several approved diversion points. To change the point of diversion to somewhere other than the location specified in the permit, the permit holder must file a petition with the DNR to relocate. Approval must be received prior to relocation. Relocations may occur within the same 40-acre government subdivision without approval from the DNR as long as impairment does not occur to other appropriators. Any relocation that harms other appropriators cannot be approved.
Amount of Water
Permits are limited as to the amount of water that may be withdrawn, stored, or used. For permits to withdraw water from streams, both the diversion rate and the total annual volume that can be diverted are usually defined.
In most instances, the law requires that the rate of diversion for irrigation not exceed one-seventieth of a cubic foot per second (cfs) per acre. (This is also stated as one cfs per 70 acres.) To convert cfs to gallons per minute (gpm), multiply by 448.8. Someone with a permit to irrigate 70 acres usually receives the right to divert one cfs or 449 gpm. Someone irrigating 35 acres usually receives a permit for 0.50 cfs or 224 gpm. However, within the last 100 years, different standards were established by law and some permits were granted instantaneous rates of less than one-to-seventy. A recently enacted law allows irrigation districts and companies to seek modification of existing permits in order to achieve a greater rate of diversion than one-to-seventy. New laws also allow for appropriators to transfer appropriations so that the rate of diversion for a tract exceeds the rate of one-to-seventy if certain requirements are met. Permits are also conditioned by law as to the maximum amount of water that can be withdrawn on an annual basis. Most irrigation permits are held to a three acre-feet per acre limitation. The amount of water diverted for both the instantaneous rate and the annual volume is measured at the point of diversion from the stream, not at the location of use.
Location of Use
The location of use is usually described within the permit and, in most cases, a map is filed as part of the permit. The map indicates the exact location of use approved by the permit. For irrigation permits, a change in the location of use requires approval from the DNR. Water rights are a property right that attach to the land and cannot be moved without formal action of the DNR.
Some permits are conditioned as to the time of year use can occur and under what situations diversions can occur. Permits describe the type of use to be made under the permit. Failure to use water as allowed under the permit for more than five consecutive years causes the permit to be subject to cancellation. There are excusable reasons for nonuse described in the law. Each permit is unique and must be read to determine exact rights associated with each.
Administration of Permits
The DNR administers surface water appropriations in accordance with the priority and limitations of the rights granted. To fulfill this duty, DNR has offices located across the state. The location, address and telephone numbers of these offices, as well as the main office in Lincoln, are listed on the back of this brochure. Permit holders who have questions regarding their permits are encouraged to contact DNR personnel at one of these locations.
Administration of water rights is necessary to assure that all water is being used to the most beneficial use allowed under Nebraska law. Proper administration allows for new permits to be granted for new uses when water is available. Holding all permits to the amount of the appropriation assures junior permit holders that they will be allowed to divert water until a natural shortage occurs. During times of shortage, junior (new priority) permits must be denied water so that senior (old priority) permits may receive the full amount of their permits.
For irrigation permits where the diversion rate is so small that a proper distribution and application is impossible, Nebraska statutes allow for a greater rate of diversion for a limited time. The greater rate must be limited so that the volume of water usedwithin a 24-hour period does not exceed the amount of water that would otherwise be allowed at the approved fixed continuous rate for a 24-hour period or, the volume of water used in a 7-day, Monday-through-Sunday period does not exceed the amount of water that would otherwise have been allowed at the approved fixed continuous rate for a 7-day period. To allow a greater rate, DNR must find that doing so will not impair the rights of other permit holders. To determine the hours or days of operation, a simple ratio system is used. The permitted rate (pr) is divided by the operating rate (or) and this quotient is multiplied by 24 to calculate the number of hours each day that diversion is allowed if a daily routine is to be established; or is multiplied by 7 to calculate the number of days each week that is allowed if a weekly rotation is to be established.
pr X 24
hours of diversion allowed each day
pr X 7
days in a week diversion is allowed
DNR staff usually set specific hours or days that the permit holder can divert water. By staggering hours or days, several permits may be satisfied within a stream reach without depleting the stream.
At the DNR’s discretion, permit holders may be required to submit a report. The first type is an acreage report where water users are required to complete a form provided by the DNR listing the number of acres the user intends to irrigate during the coming irrigation season. Such reports are mailed in January and must be returned completed by April 1. The second type of report is an after-thefact report detailing the number of acres actually irrigated during the season and how much water was used. These reports are mailed in October and are to be returned by January 1 of each year. Failure to file either type of report results in the permit holder being denied the right to divert water.
When regulating water use, notices are mailed, telefaxed, telephoned, or personally delivered to the permit holder. There are three types of notices.
- Regulating notice. This notice specifies what amount of water may be diverted under each permit. The amount of water may be less than the permitted amount based upon the capacity of the diversion facility, or the amount of water available.
- Closing order. This denies the permit holder the right to divert for reasons such as insufficient water, failure to file an acreage report, or irrigation of lands not under the permit.
- Opening order. Opening orders may be issued when water supplies increase or when needed permits or modifications to permits have been granted.
The DNR can require any appropriator to install a measuring device on any diversion facility when needed for proper water distribution. Most canals have measuring devices and in several areas pumps are required to have meters.
Under Nebraska law, anyone who uses, or allows to be used, surface water for any purpose, without authority from the DNR shall, if convicted, be guilty of a Class II misdemeanor. Each day that water is allowed to run without authority from the DNR constitutes a separate offense. The penalty for a Class II misdemeanor is a maximum of six months imprisonment or one thousand dollars fine, or both.