Applications A-15995 and A-16006 of Twin Platte Natural Resources Dist., In re
| Decision Date | 18 July 1986 |
| Docket Number | No. 85-473,A-15995,A-16006,85-473 |
| Citation | 390 N.W.2d 506,223 Neb. 430 |
| Parties | In re APPLICATIONSANDOF the TWIN PLATTE NATURAL RESOURCES DISTRICT. TWIN PLATTE NATURAL RESOURCES DISTRICT, Appellant, v. STATE of Nebraska, DEPARTMENT OF WATER RESOURCES, Appellee. |
| Court | Nebraska Supreme Court |
Syllabus by the Court
1. Administrative Law: Appeal and Error. Our review of an agency's decision under the Administrative Procedures Act, Neb.Rev.Stat. §§ 84-901 et seq. (Reissue 1981), is de novo on the record.
2. States. When a state enters into an interstate compact with another state and the compact is approved by Congress, the state surrenders a portion of its sovereignty and may not unilaterally legislate so as to place burdens on the compact in question.
3. States. The state is not prohibited from passing legislation regarding the same subject matter as a compact.
4. Administrative Law. The director must be conceded, in the normal course of the discharge of his duties, the authority to prescribe an orderly procedure in the resolution of matters before him.
Jess C. Nielsen of Nielsen & Birch, North Platte, for appellant.
Robert M. Spire, Atty. Gen., and LeRoy W. Sievers, Lincoln, for appellee.
On September 23 and October 9, 1981, the Twin Platte Natural Resources District, a public body organized under the provisions of Neb.Rev.Stat. ch. 2, art. 32 (Reissue 1983), filed applications (hereinafter application) with the Department of Water Resources of the State of Nebraska for a permit to impound water from the Platte River at a point "southwesterly from the town of Ovid, Colorado." In the application, Twin Platte specifically referred to "Article VI, South Platte River Compact." The compact was executed in 1923 and generally provides for the allocation of the water of the South Platte between the States of Nebraska and Colorado. For the purpose of the compact, the river is described as consisting of an "upper section," generally reserved exclusively to uses of Colorado residents, and of a "lower section," subject to use by residents of both states. The compact further provides for the maintenance of a "stream gaging station" at Julesburg to measure the amount of water flowing into Nebraska.
Article VI provides in pertinent part:
It is the desire of Nebraska to permit its citizens to cause a canal to be constructed and operated for the diversion of water from the South Platte River within Colorado, for irrigation of lands in Nebraska; that said canal may commence on the South bank of said river at a point southwesterly from the town of Ovid, Colorado, and may run thence easterly through Colorado along or near the line of survey of the formerly proposed "Perkins County Canal" (sometimes known as the "South Divide Canal") and into Nebraska, and that said project shall be permitted to divert waters of the river as hereinafter provided. With respect to such proposed canal it is agreed: (1) Colorado consents that Nebraska and its citizens may hereafter construct, maintain, and operate such a canal and thereby may divert water from the South Platte River within Colorado for use in Nebraska, in the manner and at the time in this article provided, and grants to Nebraska and its citizens the right to acquire by purchase, prescription, or the exercise of eminent domain such rights of way, easements or lands as may be necessary for the construction, maintenance, and operation of said canal; subject, however, to the reservations and limitations and upon the conditions expressed in this Article which are and shall be limitations upon and reservations and conditions running with the rights and privileges hereby granted, and which shall be expressed in all permits issued by Nebraska with respect to said canal. (2) The net future flow of the Lower Section of the South Platte River, which may remain after supplying all present and future appropriations from the Upper Section, and after supplying all appropriations from the Lower Section perfected prior to the seventeenth day of December, 1921, and after supplying the additional future appropriations in the Lower Section for the benefit of which a prior and preferred use of Thirty-five thousand acre feet of water is reserved by subparagraph (a) of this article, may be diverted by said canal between the fifteenth day of October of any year and the first day of April of the next succeeding year subject to the following reservations, limitations and conditions: (a) ... Colorado hereby reserves the prior, preferred and superior right to store, use and to have in storage in readiness for use on and after the first day of April in each year, an aggregate of thirty-five thousand acre feet of water.... (b) Subject at all times to the reservation made by subparagraph (a) and to the other provisions of this Article, said proposed canal shall be entitled to direct five hundred cubic feet of water per second time from the flow of the river in the Lower Section, as of priority of appropriation of date December 17th, 1921, ... of any year and the first day of April of the next succeeding year upon the express condition that the right to so divert water is and shall be limited exclusively to said annual period and shall not constitute the basis for any claim to water necessary to supply all present and future appropriations in the Upper Section or present appropriations in the Lower Section and those hereafter to be made therein as provided in subparagraph (a). (3) ... Any surplus waters of the river, which otherwise would flow past the Interstate Station during such period of any year after supplying all present and future diversions by Colorado, may be diverted by such a canal, subject to the other provisions.... (6) Nebraska shall have the right to regulate diversions of water by said canal for the purposes of protecting other diversions from the South Platte River within Nebraska and of avoiding violations of the provisions of Article IV; but Colorado reserves the right at all times to regulate and control the diversions by said canal to the extent necessary for the protection of all appropriations and diversions within Colorado or necessary to maintain the flow at the Interstate Station as provided by Article IV of this Compact.
The reference to the "Perkins County Canal," not otherwise explained, is obviously to a proposed diversion plan that never took place.
On April 26, 1982, the department wrote to the applicant, informing it that a hearing on the application "will likely not commence for some time," and advising the applicant:
Before a hearing convenes, however, the department expects to receive evidence that NRD consultation with the Game and Parks Commission has taken place. Furthermore, the Twin Platte NRD must have determined that the project will not jeopardize the continued existence of endangered or threatened species or result in destruction or modification of their habitat.
On March 11, 1983, the department again wrote to the applicant, stating:
After reviewing our schedule for Platte River water right applications, it appears that we shall take up your project before the end of this year. Barring unforeseen circumstances, we shall take up the Perkins County Canal before the so-called Landmark project. To minimize time delays we are advising you now.
As you know, our Supreme Court has ruled that under the provisions of the Non-game and Endangered Species Act all state agencies and political subdivisions must consult with the Game and Parks Commission in connection with projects such as yours. For reasons of efficiency, we shall expect your compliance with the statute and that directive prior to the start of the department's hearing.
On September 21, 1984, the department again wrote to the applicant, stating the following:
My March 11, 1983, letter requested that the Twin Platte NRD comply with the provisions of the Nongame and Endangered Species Act prior to our proceeding on your project applications. As proceedings on the Catherland and Enders' applications are nearing conclusion, action on your project draws nearer.
By October 5, 1984, please provide me documentation that consultation has been completed or, in the alternative, an activity update and expected completion date for compliance with the Act.
On October 2, 1984, the appellant responded to the requests of the department. In its letter appellant indicated that informal consultation with the Game and Parks Commission had started on April 15, 1983, and continued through October 1, 1984, the day previous to the date of the letter.
In its letter appellant outlined various areas that it asserted must be studied before formal consultation with Game and Parks could begin. The list included: (1) Developing flow data; (2) Developing alternatives for operation; (3) Obtaining the results of flow studies, part of what is referred to throughout as the "Prairie Bend Study"; and (4) Determining the water right date of December 17, 1921.
On February 4, 1985, the director issued an order directing the applicant to show cause on March 1, 1985, why its application should not be dismissed. The director assigned as the reasons for the proposed action:
1. A-15995 and A-16006 are intended for a project not consistent with the features and...
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